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Full text of "Mississippi Law Journal Feb. 1931 Book 3"

Volume III Number 3 

MISSISSIPPI 

LAW JOURNAL 



FEBRUARY, 1931 



Published by 

UNIVERSITY OF MISSISSIPPI LAW SCHOOL 

and 

MISSISSIPPI STATE BAR ASSOCIATION 

LEADING ARTICLES 

A New Legal Classification in Mississippi Jurisprudence 

William H. Wat kins 171 

Tort Liability of Insurance Companies .... R. C. Stovall 178 

Guaranty of Bank Deposits in Eight States . . . A. B. Butts 186 

The Rising Tide of Advocates . . . . . . Will Shafroth 203 

The Life of Judge J. A. P. Campbell W. J. Pack 209 

Complete Table of Contents of This Issue 
on Page III 

Entered as second class matter at the Post Office at University, Mississippi, with additional 
entry at the Post Office at Jackson, Tennessee 

$3.00 PER ANNUM 75 CENTS PER NUMBER 

Editorial and Business Office .... UNIVERSITY, MISS. 



MISSISSIPPI LAW JOURNAL 



CONTENTS 

Leading Articles 

A New Classification in Mississippi 

Jurisprudence William H. Wathins 

Tort Liability of Insurance Companies __i?. C. Stovall 

Guaranty of Bank Deposits in Eight 

States A. B. Butts 

The Rising Tide of Advocates Will Shafroth 



PAGE 

171 

178 

186 
203 



Life of Judge J. A. P. Campbell W. J. Pack 209 



In Memoriam Mrs. Lucy Somerville Howorth 230 

Note and Comment 236 



Total and Permanent Disability 
Under Insurance Contracts 236 

Adoption, Eelation It Creates, 
Effect on Property Eights 238 



Exemption of Lawyers from Civil 
Process While Attending Court 
in Foreign Jurisdiction 241 

Mortgages, How Lands Sold Un- 
der Mortgages 244 



Eecent Important Decisions 247 

Arrest — On Suspicion and Probable Cause — Use of Evidence Obtained 

Under Illegal Arrest 247 

Sales — Liability for Presence of Mice in Drinks 248 

Evidence — Relative Weight of Positive and Negative Testimony as to 

the Occurrence of a Fact 249 

Schools and School Districts — Officers — Mandamus 250 

Criminal Law — Admission of Confession Made Under Threats 251 

Divorce and Alimony — Subsequent Suit for Alimony 252 

Book Reviews 255 

Books Received 260 



Digitized by the Internet Archive 

in 2012 with funding from 

LYRASIS Members and Sloan Foundation 



http://archive.org/details/mississippilawjo03will 



MISSISSIPPI LAW JOURNAL 

JOURNAL of the MISSISSIPPI STATE BAR ASSOCIATION 
Vol. Ill FEBRUARY, 1931 No. 3 



A NEW LEGAL CLASSIFICATION IN MISSISSIPPI 
JURISPRUDENCE 

By William H Watkins* 

The discovery and production of gas in the State of 
Mississippi in commercial quantity presents a new field of 
legal research. This is virgin territory, so far as the State 
of Mississippi is concerned. 

The law pertaining to oil and gas is classified under 
present digesting systems under the classification of mines 
and minerals. An examination of the Mississippi Digest 
reveals no decision by the Supreme Court of the State of 
Mississippi dealing with the subject-matter. Emerson vs. 
Jordan, 92 So. 689, 129 Miss. 598, involved purely mineral 
rights ; the case of Board of Supervisors of Hancock County 
vs. Imperial Naval Stores, 47 So. 177, 93 Miss. 822, pre- 
sented the question as to the taxability of a turpentine lease. 

It may, therefore, be expected that the many intricate 
legal questions found in the States where oil and gas have 
heretofore existed will present themselves before the courts 
of Mississippi. Some of the most important will not involve 
a construction of a Mississippi statute, but will require the 
adoption and application of established principles to a new 
state of facts. In other words, in the main the questions will 
depend for their determination not upon the construction of 
a statute, but what Judge Cordoza calls ' ' judicial brew. ' ' 

The courts of last resort in other States are in direct 
conflict as to the application of the legal principles involved 
and the final conclusions announced. Notwithstanding this 
may be true, members of the legal profession consulted in 
respect to legal rights of their clients will be expected to 
know what the law is with respect to any controversy which 
may arise. If you were to ask a farmer today how many bales 

* Member of the Jackson, Mississippi, Bar. 
(171) 



172 MISSISSIPPI LAW JOUENAL 

of cotton he will harvest, gin and market in the present year 
he would of necessity tell yon that many things would have 
to be taken into consideration — the question of fertilizers, 
soils, climate, labor, and other factors dealing with the 
production of cotton. So, many factors enter into the de- 
cision which may finally be given by the courts of the State 
of Mississippi to the various controversies which may be 
presented. No lawyer, then, can give a final opinion as to 
many of the questions which will be presented. The de- 
cision will turn upon the view the courts of Mississippi 
may take of conflicting judicial precedents from other 
States. That this is true is one of the things which the 
average layman cannot understand about the law; he 
thinks that the lawyer ought to be able off-hand — certainly 
with some investigation — to tell him exactly what the court 
will decide in respect to each controversy. Judge Frank 
Jerome, in his recent book "Law and the Modern Mind," 
calls this the "Basic Myth"; and the fact that the lawyer 
is unable with certainty to advise his client in respect to 
each and every controverted question which may arise, 
occasions that disfavor with which the lawyer is very 
largely viewed. 

Speaking of the wide-spread criticism of the profession, 
the author says: 

''What lies back of this popular criticism? It appears to be 
founded on a belief that the lawyers complicate the law, and com- 
plicate it wantonly and unnecessarily, that, if the legal profession 
did not interpose its craftiness and guile, the law could be clear, 
exact and certain. The layman thinks that it would be possible 
so to revise the law books that they would become something like 
logarithm tables, that the lawyers could, if only they would, con- 
trive some kind of legal slide-rule for finding exact legal answers. 
Public opinion agrees with Napoleon who was sure that 'it would 
be possible to reduce laws to simple geometrical demonstrations, 
so that whoever could read and tie two ideas together would be 
capable of pronouncing on them.' 

"But the law as we have it is uncertain, indefinite, subject to 
incalculable changes. This condition the public ascribes to the 
men of law ; the average person considers either that lawyers are 
grossly negligent or that they are guilty of malpractice, venally 
obscuring simple legal truths in order to foment needless litiga- 
tion, engaging in a guild conspiracy of distortion and obfuscation 
in the interest of larger fees. 

"Now it must be conceded that, if the law can be made certain 
and invariable, the lawyers are grievously at fault. For the lay- 
man is justified in his opinion that the co-efficient of legal un- 
certainty is unquestionably large, that to predict the decisions of 
the courts on many a point is impossible. Any competent lawyer, 



A NEW LEGAL CLASSIFICATION IN MISS. JUEISPEUDENCE 173 

during any rainy iSunday afternoon, could prepare a list of hun- 
dreds of comparatively simple legal questions to which any other 
equally competent lawyer would scarcely venture to give un- 
equivocal answers." 

It may be said, however, with certainty that gas situated 
beneath the surface of the earth is an incident to the land 
and, like timber growing upon the land or minerals be- 
neath the surface, such rights thereto as are transferable 
from one person to another pass with a conveyance of the 
land. Hand vs. Fillingane, 92 Miss. 185, 45 So. 569. The 
right to drill for and take gas from beneath the surface 
of the land is a covenant running with the land, and may 
be termed an "incorporeal hereditament, ' ' or, in other 
words, "incorporeal real property." 

In Thornton on Oil and Gas, Vol. 1, Par. 19, the follow- 
ing rule is announced: 

"Oil and gas, until severed from the realty, are as much a part 
of it as coal or stone. So long as they remain in the ground, out- 
side of an artificial receptacle, at least, as the casing of a well or 
a pipe line, they must be treated as a part of the realty underneath 
the surface of which they lie. So much so are they a part of the 
realty, as we shall repeatedly see hereafter, that a conveyance of 
them in their natural state in the earth requires all the formalities 
of a conveyance of any other interest in the same real estate. A 
reservation of 'all mines, minerals and metals in and under' a 
tract of land is a reservation of the oil and gas. ' ' 

Also, on page 75 the following rule is announced : 

"A deed that conveys the fee conveys the oil, gas and minerals 
under the surface; and oral evidence is not admissible to show 
that oil, gas and minerals were not conveyed." 

Gas situated below the surface of the earth is a fugitive 
substance ; the owner of the land may drill thereupon and 
extract the gas therefrom. If he fails to do so, however, 
the owner of an adjoining tract of land, by drilling upon 
his own property, may remove the gas from the land of 
his neighbor without liability therefor. This being true, 
a very interesting question has been presented in other 
States, and will doubtless become the subject of controversy 
in the State of Mississippi, as to whether or not the owner 
of the soil owns the gas beneath the surface of the ground, 
provided he captures the same before the owner of adjoin- 
ing land may do so. In other words, before taking the 
same does the owner of the land own the title to the gas, 
or does he merely own the right to drill thereupon for gas 
and become invested only with the legal title thereto after 
the same is captured? There is well nigh a hopeless con- 
flict of authorities upon this question. The determination 



174 MISSISSIPPI LAW JOUENAL 

thereof depends upon no statute, but the application of 
legal principles by the courts of the State in which the land 
is situated. The question is not one of Federal law; upon 
the other hand, the United States Court would be bound 
by the decision of the State court of last resort in respect 
thereto. Edivard Hines Yellow Pine Trustees vs. Martin, 
268 U. S. 458, 69 L. Ed. 105. 

The question came before the Supreme Court of the 
United States in the case of Brown vs. Spilman, 155 U. S. 
665, 39 L. Ed. 304. The case was tried in the State of West 
Virginia, and the Federal Court was, therefore, bound by 
West Virginia decisions upon the subject-matter. The 
Supreme Court of the State of West Virginia was one of 
the courts holding that the owner of the land had the legal 
title to gas beneath the surface, provided the same was 
captured by him, but that, in the meantime, the owner of 
the land was the proprietor of the gas. The Court used the 
following language : 

"It may be well to make some preliminary observations on 
the subject-matter of this contract, and thus facilitate the task 
of its construction. 

"The subject of the grant was not the land, certainly not the 
surface. All of that except the portions actually necessary for 
operating purposes and the easement of ingress and egress, was 
expressly reserved to Taylor. The real subject of the grant was 
the gas and oil contained in or obtainable through the land, or 
rather the right to take possession of the gas and oil by mining 
and boring for the same. 

"Petroleum gas and oil are substances of a peculiar character, 
and decisions in ordinary cases of mining, for coal and other 
minerals which have a fixed situs, cannot be applied to contracts 
concerning them without some qualifications. They belong to the 
owner of the land, and are part of it, so long as they are on it or 
in it, or subject to his control, but when they escape and go into 
other land, or come under another's control, the title of the former 
owner is gone. If an adjoining owner drills his own land and taps 
a deposit of oil or gas, extending under his neighbor's field, so 
that it comes into his well, it becomes his property. Brown vs. 
Vandergrift, 80 Pa. 147; Westmoreland & C. Nat. Gas Co.'s App., 
130 Pa. 235." 

The contrary view, however, is that of the State of 
Indiana as announced by its courts. The question was pre- 
sented in the Supreme Court of the United States, Ohio 
Oil Co. vs. Indiana, 177 U. S. 190, 44 L. Ed. 729. The 
Supreme Court of Indiana had held in numerous decisions 
that the owner of the land did not have title to the gas be- 
neath the surface until after he captured it, but has, as an 
incident to the ownership of the land, the exclusive right to 



A NEW LEGAL CLASSIFICATION IN MISS. JUKISPEUDENCE 175 

drill upon such land for gas. The Court used the following 
language : 

"The proposition, then, which denies the power in the State 
to regulate by law the manner in which the gas and oil may be 
appropriated, and thus prevent their destruction, of necessity in- 
volves the assertion that there can be no right of ownership in 
and to the oil and gas before the same have been actually ap- 
propriated by being brought into the possession of some particular 
person. But it cannot be that property as to a specified thing 
vests in one who has no right to prevent any other person from 
taking or destroying the object which is asserted to be the subject 
of the right of property. The whole contention, therefore, comes 
to this : That property has been taken without due process of law, 
in violation of the Fourteenth Amendment, because of the fact 
that the thing taken was not property, and could not, therefore, 
be brought within the guaranties ordained for the proper protec- 
tion of property." 

The court held that while the owner of land did not own 
the gas as placed under the land, and only got title to the 
gas after the same was captured, the right to take the gas 
was an incident to the ownership of the land, in that only 
the owner of the land could drill a well thereupon. The 
Court used the following language : 

"No one owner of the surface of the earth, within the area 
beneath which the gas and oil move can exercise his right to ex- 
tract from the common reservoir, in which the supply is held, 
without to an extent diminishing the source of supply as to which 
all other owners of the surface must exercise their rights. The 
waste by one owner, caused by a reckless enjoymnt of his rights 
of striking the reservoir, at once, therefore, operates upon the 
other surface owners. Besides, whilst oil and gas are different in 
character they are yet one, because they are unitedly held in the 
place of deposit. In Brown vs. Spilman, 155 U. S. 665, 669, 670, 
39 L. Ed. 304, 305, 15 Sup. Ct. Rep. 245, 247, these distinctive 
features of deposits of gas and oil were remarked upon. The 
Court said : 

" 'Petroleum gas and oil are substances of a peculiar character, 
and decisions in ordinary cases of mining for coal and other min- 
erals which have a fixed situs, cannot be applied to contracts 
concerning them without some qualifications. They belong to the 
owner of the land, and are a part of it, so long as they are on it or 
in it, or subject to his control, but when they escape and go into 
other land, or come under another's control, the title of the former 
owner is gone. If an adjoining owner drills his own land and taps 
a deposit of oil or gas, extending under his neighbor's field, so 
that it comes into his well, it becomes his property.' Brown vs. 
Vandergrift, 80 Pa. 142, 147 ; "Westmoreland & C. Nat. Gas. Co. vs. 
DeWitt, 130 Pa. 235, 5 L. R. A. 731, 18 Atl. 724." 



176 MISSISSIPPI LAW JOURNAL 

The Court also used the following language : 
"Without pausing to weigh the reasoning of the opinions of 
the Indiana court in order to ascertain whether they in every 
respect harmonize, it is apparent that the cases in question, in 
accord with the rule of general law, settle the rule of property in 
the State of Indiana to be as follows : Although in virtue of his 
proprietorship the owner of the surface may bore wells for the 
purpose of extracting natural gas and oil until these substances 
are actually reduced by him to possession, he has no title what- 
ever to them as owner. That is, he has the exclusive right on his 
own land to seek to acquire them, but they do not become his 
property until the effort has resulted in dominion and control by 
actual possession. It is also clear from the Indiana cases cited 
that, in the absence of regulation by law, every owner of the sur- 
face within a gas field may prosecute his efforts and may reduce 
to possession all or every part, if possible, of the deposits, with- 
out violating the rights of the other surface owners. 

"If the analogy between animals ferae naturae and mineral 
deposits of oil and gas stated by the Pennsylvania courts and 
adopted by the Indiana court, instead of simply establishing a 
similarity of relation proved the identity of the two things, there 
would be an end of the case. This follows because things which 
are ferae naturae belong to the 'negative community'; in other 
words, are public things subject to the absolute control of the 
State, which, although it allows them to be reduced to possession, 
may at its will not only regulate, but wholly forbid their future 
taking. Geer vs. Connecticut, 161 U. S. 519, 525, 40 L. Ed. 793, 
16 Sup. Ct. Rep. 600. But whilst there is an analogy between 
animals ferae naturae and the moving deposits of oil and natural 
gas, there is no identity between them. Thus, the owner of land 
has the exclusive right on his property to reduce the game there 
found to possession, just as the owner of the soil has the exclusive 
right to reduce to possession the deposits of natural gas and oil 
found beneath the surface of his land. The owner of the soil can- 
not follow game when it passes from his property ; so, also, the 
owner may not follow the natural gas when it shifts from beneath 
his own to the property of someone else within the gas field. It 
being true as to both animals ferae naturae and gas and oil, there- 
fore, that whilst the right to appropriate and become the owner 
exists, proprietorship does not take being until the particular sub- 
jects of the right become property by being reduced to actual 
possession. The identity, however, is for many reasons wanting. 
In things ferae naturae all are endowed with the power of seeking 
to reduce a portion of the public property to the domain of pri- 
vate ownership by reducing them to possession. In the case of 
natural gas and oil no such right exists in the public. It is vested 
only in the owners in fee of the surface of the earth within the 
area of the gas field. This difference points at once to the dis- 
tinction between the power which the law-maker may exercise as 
to the two." 



A NEW LEGAL CLASSIFICATION IN MISS. JURISPRUDENCE 177 

All authorities appear to agree, however, that the right 
to take gas from beneath the surface of the land is real 
estate; that is to say, an incident to the ownership of the 
fee, and passes by conveyance thereof. Frost Johnson Lbr. 
Co. vs. Sailing, (La.) 91 So. 207; Handy vs. Texas Co., 140 
La. 194; 72 So. 933; Emerson vs. Little Six Oil Co., C. C. A. 
(5th) 3 Fed. (2d) 265; U. S. vs. Looney, C. C. A. (5th) 29 
Fed. (2d) 884. 

The foregoing is only one of the many interesting and 
important legal questions involving the substantial rights 
of persons in the State of Mississippi. 



178 MISSISSIPPI LAW JOURNAL 



TORT LIABILITY OF INSURANCE COMPANIES 
By R. C. Stovall* 

It is with hesitancy the writer undertakes an article deal- 
ing with the liability of insurance companies in tort. In the 
February, 1930, issue of the Mississippi Law Journal there 
appeared an article by Honorable W. Calvin Wells on this 
subject, presenting in a very forceful manner the reasons 
why an insurance company should not be held responsible 
for its negligence and that of its agents in not promptly for- 
warding applications for insurance, or for delay of the 
company in passing upon such applications, or for delay in 
forwarding and delivering policies after issuance within a 
reasonable time. 1 Paramount consideration was given in 
an endeavor to justify the conclusion of the Supreme Court 
of Mississippi in Savage, Admr., etc. vs. Prudential Life 
Insurance Company of America, et al., 121 So. 487, as rep- 
resenting the weight of authority and better reasoning of 
such cases. The writer in taking a contrary view does so 
with great deference to the ability of Mr. Wells and the 
learning of the Supreme Court of Mississippi. It seems that 
two major questions are raised against holding an insurance 
company liable in tort when its agent, who solicits an ap- 
plication of insurance, fails to transmit it promptly to the 
home office, or its local medical examiner fails to transmit 
promptly the report of his examination, or the home office 
fails to pass upon such application of insurance within a 
reasonable time, and fails to deliver the policy when issued 
or notify the applicant within a reasonable time of the ac- 
ceptance or rejection of his application. 

The first obstacle is the elementary theory of a contract 
that there must be a meeting of the minds of the parties 
upon a particular subject matter has not been complied 
with. Second, that legislative action is necessary to impose 
a duty upon the insurance company to use diligence under 
such circumstances and to hold otherwise would constitute 
Judicial Legislation, and therefore against public policy 
and contrary to the function of the court. 

It is recognized as sound law that where a person makes 
an offer, the offeree must accept it upon the terms stated, 
otherwise no contractural obligation exists; and further, 

* Member Okolona, Mississippi, Bar. 

l Mississippi Law Journal, Vol. 2, page 293. 



TORT LIABILITY OF INSURANCE COMPANIES 179 

that the delay of the offeree in accepting the offer or fail- 
ing to either accept or reject the offer will not create a 
contract, but it is a non-sequitur to hold that an action in 
tort may not arise in a case where an action ex contractu 
cannot be sustained. To determine whether any duty is 
owed by an insurance company to an applicant for insur- 
ance it must first be decided whether the insurance business 
is affected with a public interest, and, it is submitted, that 
such business does become clothed with a public interest 
when used in a manner to make it of public consequence 
and affect the community at large. 2 And where an operator 
of a given business holds himself out to render a service 
of a public character and of public consequence and concern, 
such as the insurance business, then such business may 
safely be said to be affected with a public interest and com- 
parable to that of a public utility. 

Confusion has arisen because of the court's failure to 
distinguish complaints against insurance companies in as- 
sumpsit or actions ex contractu when the proof was such 
as to sustain an action, if properly pleaded, ex delicto. 3 It 
is a primary and elementary principle that a party can suc- 
ceed in an action at law only on the case made by the plead- 
ings. Proofs, to be effectual, must correspond substan- 
tially with the allegations of the pleading. A party must 
succeed, if at all, upon the claim set up in his declaration. 
Proof without allegation is as unavailing as allegation with- 
out proof. A party cannot set up one cause of action and 
succeed upon proof of another and different cause of action 
not pleaded. 4 

It is recognized by the Supreme Court of Mississippi in 
Savage vs. Prudential Insurance Company of America et al., 
supra, as well as in most other States of the Union, that the 
business of insurance is affected with a public interest; 5 
that a regulation of such business by statute which requires 
prompt action by insurance companies in passing upon ap- 
plications for insurance does not violate the fourteenth 
amendment to the federal constitution. It is submitted 
upon reason and authority that if the legislature, under 
the police power reserved to it by the federal constitution, 

2 Munn vs. Illinois, 94 U. S. 113, 24 Law Ed. 77. 

3 Northern Neck Mutual, etc. vs. Turlington, 116 S. E. 363; Northwestern 
Mutual Life Ins. Co. vs. Neaf us, 145 Ky. 563, 140 S. W. 1026 ; National Union 
Ins. Co. vs. School District, 182 S. W. (Ark.) 547; Musselhorn vs. Mutual 
Reserve, 30 Fed. 554. 

4 49 C. J. 804, Sec. 1187. 

5 N. W. Natl. Life Ins. Co. vs. Riggs, 203 U. S. 243; Natl. Fire Ins. Co. 
vs. Wanberg, 260 U. S. 71. 



180 MISSISSIPPI LAW JOURNAL 

can regulate insurance companies to the extent of prescrib- 
ing contractural relations 6 and invalidating certain elements 
of the contracts such as the exclusion of the defense of sui- 
cide, 7 then the courts are acting properly within their sphere 
in determining whether or not concrete controversies be- 
tween a business affected with a public interest and an in- 
dividual dealing with such business organization, to-wit, 
Insurance Company, there is a duty imposed upon such 
organization to use diligence and due care in the perform- 
ance of its business. 

There are three Mississippi cases quoted from by Mr. 
Wells and referred to by the Supreme Court of Mississippi 
in the Savage case as sustaining the proposition that under 
the circumstances set out in the subject of this paper no 
liability exists against an insurance company for negligence. 
They are Jacobs vs. Insurance Company, 71 Miss. 658; 
Insurance Company vs. Mcintosh, 86 Miss. 236; and Newark 
Insurance Company vs. Russell, 107 So. 714. There can be 
no criticism of the holding of the court in those cases for the 
declaration was founded solely on contract. These cases 
are similar to those of other jurisdictions denying recovery 
where the action sounded in contract though the proof 
established negligence on the part of the insurance company 
in passing upon the application or delivering the policy and 
the loss occurred before a completion of the contract. 8 In 
reaching its conclusion in the Jacob case the court said: 
"There is no escape from the plain stipulation of the con- 
tract,' ' and in the Mcintosh case the court said: "he died 
before he had an opportunity to determine whether he 
would accept it (referring to a policy written different from 
the one applied for) ; thus it is perfectly evident that the 
minds of the parties never met and that no contract of in- 
surance was ever effected, ,, and in the Russell case the 
court uses this language: "but whether we treat the suit 
as one upon a written contract of insurance or upon an oral 
contract can make no difference so far as the result of this 
case is concerned, because the conclusion we have reached 
will end the case in either event." The question is: 
"whether or not there was in fact a contract of insurance 
entered into between the parties?" 

The Supreme Court of Mississippi in the Savage case 
stated : "We are unable to see how an action may be main- 

6 Wanberg vs. National Union Fire Ins. Co., 67 Law Ed. 139. 

7 Whitfield vs. Aetna Life Ins. Co., 51 Law Ed. 891. 

8 Ins. Co. vs. Mayes, 61 Ala. 163; Ins. Co. vs. Neafus, 145 Ky. 563, 140 
S. W. 1026. 



TORT LIABILITY OP INSURANCE COMPANIES J 81 

tained in tort which so clearly cannot be maintained on any 
theory in the contract. The Prudential Life Insurance 
Company was under no duty to write insurance on the life 
of the appellant's intestate because there is no statute in 
this State fixing such duty upon insurance companies. We 
can find no such rule in the Common Law. It is quite ele- 
mentary that it cannot be a tort without a breach of a legal 
duty. It is true that the business of insurance is affected 
with a public interest.' ' Just what the court had in mind 
when it refused to predicate liability because it could find 
"no rule at the Common Law" it is difficult to understand. 
Not only what is the law but our conception of what law is 
of necessity changes with time. What is often referred to 
as the Common Law had its source in the very early judg- 
ments of the English Courts in pronouncing their views 
upon concrete controversies or in a recognition of some 
custom or usage that in the mind of the individual judge 
was for the best interest of society. Students of the law 
would not consider the term "The Common Law" as the 
embodiment of an ancient code or the result of judicial de- 
cisions drawn by some superhuman wisdom in the dim past. 
As stated by Geldart: "I doubt if Blackstone, should he 
suddenly visit the courts which have taken the place of those 
he knew, could understand enough of their law and pro- 
cedure to do more than feel occasionally shocked." If 
judicial decision does not, in the present day, make the 
Common Law, or, as expressed by Professor Williston, 
"Unwritten Law," then we must say that law pre-exists 
judicial decision and assume the eternal self sufficiency of 
the existing law. But as stated by Mr. Cohen: "If the 
identity of the Common Law since Littleton, Coke or Black- 
stone, is to be maintained at all, it is not as a collection of 
substantive rules but rather as a mode of judicial thinking 
or as a method of law making. " 9 " Life is continually de- 
veloping new and unforseeable situations uncovered by pre- 
cedent. Judges are obliged to decide every case before them 
(these decisions serving as binding precedents). It follows 
that they must, in the course of their work, develop new 
rules." The flimsy fiction that judicial decisions do not 
make the law but are only the evidence of it is inconsistent 
with the doctrine of ' * stare decisis. ' ' If decisions were only 
evidence of the law why could not courts of inferior juris- 
diction entertain evidence that any previous decisions or 
judgments were wrong? Obviously, to the extent that such 
evidence is excluded the past decisions have made law. 

9 48 American Law Review 168. 



182 MISSISSIPPI LAW JOUKNAL 

The anonymous and fictional character of the "Fellow 
Servant Rule" and the doctrine of "Assumption of Risk" 
are creatures of judicial legislation. The law of negligence 
consists principally of various standards of conduct set up 
by the courts to which people must conform at their peril. 
The right of action for Malicious Prosecution and for False 
Arrest does not have its inception is legislative fiat but by 
judicial decision. The outstanding instance of judicial legis- 
lation is the creation of modern mercantile law by Lord 
Mansfield out of long established customs of merchants. 
And again, the application of the law of Common Carriers 
to that of telephone companies and public utilities is noth- 
ing but judicial legislation arrived at by the desire of the 
particular judge to reach what, in his mind, is a right con- 
clusion, and at the same time be supported by precedent, 
and as stated by Dean Wigmore : "A judge may decide al- 
most any question any way and still be supported by an ar- 
ray of cases." However, Chief Justice Marshall seldom 
cited precedent to sustain his decisions, yet no one will say 
his interpretation of the constitution was not judicial legis- 
lation and, at the same time, such legislation that excells 
any that might have been enacted by Congress. When we 
view the great mass of equity rules and doctrines that have 
been evolved by the courts to lessen the rigors of what was 
called the Common Law, and which is now administered in 
most States by the same court but in Mississippi by a sep- 
arate tribunal we are forced to admit that there are laws 
made by judicial legislation and that they are far more 
workable than if such laws or principles of equity had been 
prescribed by our legislatures. Even though our legislatures 
pass laws, in the final analysis, when the courts "construe" 
them to determine their meaning if ambiguous, or interpret 
them to determine whether certain elements should be sup- 
plied to reach a fitting result or their validity under con- 
stitutional grant, judicial legislation is the result, which, it 
is submitted, is a wholesome one. As stated by Mr. Cohen : 
"It is more reasonable to suppose that the minds of most 
judges work like those of other mortals ; that is, having in 
various ways been unconsciously determined to decide one 
way or another, they look for and find reasons or precedents 
for such decisions." 

To concur with Mr. Wells ' argument that tort liability 
against an insurance company is unsound in principle and 
illogical and unreasonable because it is purely and solely 
judicial legislation would be, in the words of Dean Pound, 
1 i a resistance to rational improvement, ' ' and a denial of any 



TORT LIABILITY OF INSURANCE COMPANIES 183 

confidence in the judiciary to determine controversies be- 
tween members of society in the light of existing conditions 
and, according to Dean Pound, "judicial refusal to walk in 
new paths should be averted.' ' 

Before the legislature could enact a valid statute giving 
a right of action to an applicant for insurance where the 
company had been guilty of negligence in handling the ap- 
plication and in delivering the policies, etc., it would first 
have to be determined that the insurance business was af- 
fected with a public interest. No citation of authority is 
necessary to sustain the proposition that legislative fiat can- 
not convert a private business into a public one, and the 
only effect that legislative action would have would be mere- 
ly evidentiary and not conclusive because the question in 
its last analysis is a judicial one. In other words, a statute 
giving a right of action by an applicant against an insur- 
ance company under the circumstances set out in the subject 
of this article would be no more than declaratory of the 
Common Law. 

At this point it must be noted that it is not contended 
that an applicant for life insurance who is not, under any 
circumstances, a suitable risk has a cause of action against 
an insurance company for negligence for the status of such 
complainant would be that of ' ' injuria absque damno. ' 9 But 
it is submitted that, by the weight of authority, a person 
that is a suitable risk, though on terms different from that 
applied for, does have a right of action against an insur- 
ance company for negligence in handling the application 
or the policies whereby loss is sustained prior to the actual 
delivery of the policies, and such action in the case of life 
insurance may be maintained by the administrator of the 
estate of the deceased applicant. 

The Supreme Court of Alabama in Lewis vs. Brother- 
hood of Locomotive Firemen and Engineermen, 124 So. 889, 
declined to follow the holding in Savage vs. Prudential Life 
Insurance Co., and held that plaintiff had a right of action 
against defendant insurance company for the negligence of 
the local secretary of such company in transferring papers 
whereby the plaintiff was injured prior to the issuance of 
the policy. This case at the same time distinguished that 
of Insurance Company vs. Mayes, 61 Ala. 163, cited by Mr. 
Wells. The distinction is made because one is an action ex 
delicto and the other ex contractu. In the recent case of 
Behanke et al. vs. Insurance Company, 41 Fed. 2nd 696, 
decided on the 6th of June, 1930, the Circuit Court of Ap- 
peals for the seventh circuit recognized that an insurance 



184 MISSISSIPPI LAW JOUKNAL 

company may be liable for its delay in passing upon an 
application for insurance but held that the facts were such 
as to exonerate the company from liability. It is generally 
recognized that the legislative policy in granting to insur- 
ance companies a franchise rests on the theory that charter- 
ing such an association is in the interest of the public to 
the end that indemnity on specific contingencies shall be 
provided those that are eligible and desire it, and for their 
protection the State regulates, inspects and supervises their 
business. 10 Policies of insurance are ordinarily dated as of 
the day the application is signed and an insurance company 
should not be permitted to unduly prolong the period for 
which it is expecting payment without incurring risk, and 
if the policy is not dated until the application is approved 
at the home office, then it should not be permitted to unduly 
delay in delivery of the policy, during which time the ap- 
plicant is unprotected, and at the same time no refund is 
made him on the amount of the premium when no risk was 
incurred on the contract theory until the delivery of the 
policy and the payment of the premium, or if, within a rea- 
sonable time after the date of the policy, the applicant re- 
mains in good health but thereafter becomes ill before de- 
livery of the policy by the agent, and because of the agent's 
negligence the policy is not delivered while the applicant is 
a suitable risk, then a right of action accrues against the 
agent and the company for the loss sustained by such negli- 
gence, and this is true even though no premium has been 
paid in advance by the applicant. 11 

Some courts have held that the remedy based on negli- 
gence is founded on reason and justice and that where the 
insurance company accepted conditionally the first annual 
premium, the transaction makes the insurance company ap- 
plicant's trustee for the return of the premium if the appli- 
cation is rejected, and for the unconditional acceptance of 
the premium if the application is approved and the policy 
delivered; that the receipt implies time for a proper in- 
vestigation of the risk under consideration and that good 
faith and fairness of both parties are required in negotia- 
tions for insurance. The retaining of the money of the ap- 
plicant beyond a reasonable time would deprive him of its 
possession and use during the delay. The use of money or 
interest thereon is a valuable right and negligence or un- 
excusable delay on the part of a trustee is a wrong if it de- 
prives the beneficiary of the use of a trust fund which has 

10 Duffy vs. Bankers Life, 139 N. W. 1087. 

li Fox vs. Volunteer Life Ins. Co., 116 S. E. 266. 



TORT LIABILITY OF INSURANCE COMPANIES 185 

served its purpose as such. 12 In the foot note are given 
cases which hold an insurance company liable in tort under 
varying circumstances. 

Thus it is submitted that even though an application for 
insurance should contain a stipulation i ' That if said appli- 
cation is not approved and accepted said company shall in- 
cur no liability thereunder, ' ' the insurance company is not 
excused from its duty to use diligence in transmitting the 
application and medical report, in the event of health and 
life insurance, and in passing upon said application and in 
delivering the policy of insurance or notifying the applicant, 
within a reasonable time, whether or not the application has 
been accepted or rejected. Such a stipulation in an appli- 
cation has no binding effect in considering liability in tort 
for it is without consideration, and it is more reasonable 
to say that when an applicant elects an insurance company 
of his choice he is lulled into security that the application 
for a policy will be handled with diligence because of the 
very nature of the business the insurance company is en- 
gaged in, and when an insurance company obtains an appli- 
cation for insurance it impliedly obligates itself to use dili- 
gence in handling it. The fact that a premium is not paid in 
advance does not lessen this duty. This company can either 
require a payment of the premium upon the taking of the 
application or upon the delivery of the policy, and when it 
elects to collect the premium upon delivery of the policy 
then by its conduct it should be estopped, under recognized 
principles of law, to set up as a defense to an action for 
negligence the failure of the applicant to have paid the 
premium in advance. 

12 Boyer vs. State Farmers Mutual Hail Ins. Co., 121 Pac. 329, (Kan.) ; 
Childers vs. New York Life Insurance Co., 245 Pac. 59; Columbian Natl. Life 
Ins. Co. vs. Lemmons, Admr., 222 Pac. 255; Deford vs. New York Life Ins Co., 
(Colo.) 224 Pac. 1049; Dyer vs. Missouri State Life Ins. Co., 232 Pac. 346; 
Elam vs. Realty Co., 182 N. C. 602, 109 S. E. 633 ; Fox vs. Volunteer State Life 
Ins. Co., 116 S. E. 266; Jackson et al. vs. N. Y. Life Ins. Co., 7 Fed. (2nd) 31; 
Live Stock Ins. Assn. vs. Stickler, 115 N. E. 691 ; N. W. Mutual Life Ins. Co. 
vs. Neafus, (Ky.) 140 S. W. 1026; Paul vs. Ins. Co., (N. C.) 110 S. E. 847; 
Security Ins. Company of New Haven, Conn. vs. Cameron, (Okla.) 205 Pac. 151; 
Stearns vs. Merchants Life & Casualty Co., 165 N. W. 568; Wallace vs. Hart- 
ford Fire Ins. Co., (Id) 174 Pac. 1009. 



186 MISSISSIPPI LAW JOURNAL 



GUARANTY OF BANK DEPOSITS 
IN EIGHT STATESt 

By A. B. Butts* 

(See article by the same author, State Regulation of Banking by Guaranty 
of Deposits, Mississippi Law Journal, Volume 2, p. 208, November 1929, a dis- 
cussion of the history and the operation of the guaranty law in the State of 
Mississippi. — Ed.) 

More than two decades ago the idea of the guaranty of 
bank' deposits was written into the laws of the State of 
Oklahoma. Within a month after its admission as a State, 
and while the panic of 1907 was running its course, Okla- 
homa enacted its guaranty law. 1 

Seven other States have enacted guaranty laws : Kansas 
in 1909, 2 Texas in 1910, 3 Nebraska in 1911 (Law enacted in 
1909, but suspended by injunction bill until 1911 ), 4 Missis- 
sippi in 1914, 5 South Dakota in 1915, 6 and North Dakota 7 
and Washington in 1917. 8 

Bank-guaranty became a question of importance in other 
States than the eight in which legislation was enacted. The 
other States that gave the subject serious consideration were 
Arizona, Arkansas, Florida, Georgia, Tennessee, Iowa, Wis- 
consin, Missouri, Colorado, Nevada, Minnesota, Montana, 
and North Carolina. 9 

By legislative enactment seven of the eight States have 
repealed their bank guaranty laws. In one State, Mississip- 
pi, the guaranty law has been suspended until outstanding 
certificates are liquidated. 10 

t This paper was prepared under the direction of Professor Eoscoe B. 
Turner at Yale University School of Law. 

* Vice-President and Professor of Government, Mississippi A. and M. 
College; Member of the Mississippi Bar. 

1 Compiled Statutes of Oklahoma, 1921, Chapter 34. 

2 Revised Statutes of Kansas, 1923, Chapter 9. 

3 Digest of Banking Laws, Texas, 1923, Chapter 7. 

4 Laws of Nebraska, 1909, Chapter 10; Compiled Statutes of Nebraska, 
1922, Sees. 7995-8035 (Sec. 8028 on guaranty fund) ; Session Laws, 1923, House 
Rule No. 272 and No. 237, Chapter 191, Sec. 26. 

5 Hemingway's Mississippi Code, 1917, Sees. 3591-3605, as amended by 
Laws of 1922, Chapter 172. 

6 Revised Code of South Dakota, 1919, Art. 3, Sees. 9005-9031; Session 
Laws, 1921, Chapter 136. 

7 Laws of North Dakota, 1923, Senate Bill No. 250, Chapter 200. 

8 Remington's Code, Washington, Sees. 3293-3312. 

9 Federal Reserve Bulletin, September 1925, p. 627; Thomas Bruce Robb, 
The Guaranty of Bank Deposits (1921), Chapter 7, p. 160. 

10 Laws of Mississippi, 1930, Chapter 22. 



GUAEANTY OF BANK DEPOSITS IN EIGHT STATES 187 

It may be observed at the outset that recent experiences 
under the guaranty laws have been quite similar in several 
States. "Generally the laws seemed to work well for a 
period, winning popular favor by providing for prompt dis- 
charge of all deposit liabilities of failed banks, " says the 
Report of the Federal Reserve Board. And this Report 
says further : ' * Generally the laws have been commended 
from year to year by State bank commissioners or super- 
intendents in their annual reports as providing precisely 
the guaranty originally intended; and generally also . . . 
bank failures have piled up obligations against the funds in 
excess of resources immediately, or in some cases, as it 
would appear, ultimately available under the law, with the 
result that those administering the fund have resorted to 
borrowing ... or to the issue of certificates of indebted- 
ness to depositors.'' 11 The five years that have elapsed 
since this statement was made serve only to make more 
certain the truthfulness of the observation. 

It will perhaps not be amiss to give a brief summary of 
the guaranty laws of each of the eight States, followed in 
each case by a statement of the status of the guaranty fund. 

In the case of each State the summary of the law as here 
given will include these topics : institutions included ; par- 
ticipation, whether compulsory or optional; character of 
deposits guaranteed; maximum assessments in any one 
year; rate of interest on outstanding warrants or certifi- 
cates of indebtedness. The administrative phases of the 
laws concerning method of payment of depositors, powers 
of State Boards or Commissioners, disposition of the guar- 
anty funds, and the requirements as to the basis and rate of 
regular and special assessments will not be considered here. 

For convenience of comparison, a tabular presentation 
of the phases of the guaranty laws under consideration will 
be given. 12 

(1) Institutions included : 

Oklahoma: Every bank, and savings departments of trust 
companies. 

Kansas: Any bank doing business in the State with an un- 
impaired surplus of 10 per cent of its capital and any bank 
authorized to do business in the State after the passage of the 
act which shall have been actively engaged in business for one 
year and having such surplus. 

Texas: Every corporation hereafter incorporated under the 
laws of Texas with banking and discounting privileges, and bank- 

11 Federal Reserve Bulletin, September 1925, p. 626. 

12 See Federal Reserve Bulletin, September 1925, pp. 626-668. 



188 MISSISSIPPI LAW JOURNAL 

ing and trust companies heretofore incorporated under the Texas 
banking law or hereafter incorporated. 

Nebraska: Every corporation engaged in the business of 
banking. 

Mississippi: Every bank organized and existing under the 
laws of Mississippi. 

South Dakota : Every bank engaged in the business of bank- 
ing under the laws of South Dakota. 

North Dakota: Every corporation, except national banks, 
whose business in whole or in part consists of the taking of de- 
posits or buying or selling exchange, shall be subject to the pro- 
visions of this act, and trust companies doing a general banking 
business separate and apart from the writing of surety bonds and 
other general business, and building and loan associations receiv- 
ing savings deposits shall also be subject to the provisions of this 
act. 

Washington : Any corporation organized under the laws of 
Washington authorizing the organization of banks or trust com- 
panies, except mutual savings banks, and engaged in the banking 
business in this State. 

(2) Participation, whether compulsory or optional: 
Oklahoma : Compulsory : 

Kansas : Optional. 

Texas : Compulsory. Banks were permitted to elect whether 
they would secure their depositors by the guaranty-fund system 
or the bond-security system, but such depositors must be secured 
by one or the other of such systems. 

Nebraska : Compulsory. 

Mississippi : Compulsory. 

South Dakota : Compulsory. 

North Dakota : Compulsory. 

Washington : Optional. 

(3) Character of deposits guaranteed: 

Oklahoma : Deposits of failed banks, but no deposit other- 
wise secured, nor any deposit on which a greater rate of interest 
is allowed than is permitted by the rule of the bank commissioner. 

Kansas : All deposits not otherwise secured ; but the guaranty 
shall not apply to a bank's obligations as indorser upon bills re- 
discounted, to bills payable, to money borrowed from its corre- 
spondents or others (any deposit on which a greater rate of in- 
terest is paid than the rate approved by the bank commissioner 
shall be considered money borrowed), or deposits or credits ob- 
tained by fraud or in violation of law, or evidence of debts fraud- 
ulently issued. 

Texas : All deposits, provided, however, no deposit upon which 
interest is being paid or contracted to be paid; no deposit secured 
in any way ; no certificate of deposit, whether interest bearing or 
not, that shall have been changed to a non-interest-bearing un- 
secured deposit within 90 days prior to the closing of the bank by 
the commissioner; no deposit of public funds, whether interest- 



GUAEANTY OF BANK DEPOSITS IN EIGHT STATES 189 

bearing or not ; and no deposit made by a creditor for the purpose 
of converting a loan held against the debtor bank into a non- 
interest-bearing unsecured deposit shall be protected or insured 
by the guaranty fund. Cashiers' checks, bank drafts, or exchange 
issued against or arising from bona fide unsecured non-interest- 
bearing deposits shall be protected under the guaranty fund. Non- 
interest-bearing certificates of deposit issued by State banks and 
trust companies are not protected or insured by the guaranty fund. 

Nebraska : The guaranty fund is for the protection of depos- 
itors, but no money deposited in any bank upon any collateral 
agreement other than an agreement for length of time to maturity 
and rate of interest shall be guaranteed by the depositors' guar- 
anty fund. No claim of priority in the assets of a failed bank 
shall be allowed which is based on evidence of indebtedness in the 
hands of, or issued to, a stockholder, officer, or employee of a 
failed bank which represents money obtained by such stock- 
holder, officer, or employee for the purpose of effecting a loan 
to such failed bank. 

Mississippi : All deposits not otherwise secured and all cash- 
iers ' checks, certified checks or sight exchange issued by banks 
operating under the guaranty fund act. The guaranty shall not 
apply to a bank's obligations as endorser, upon bills rediscounted, 
nor to bills payable nor to money borrowed from its correspond- 
ents or others, nor to deposits bearing a greater rate of interest 
than 4 per cent per annum. 

South Dakota: All deposits not otherwise secured shall be 
secured by the guaranty fund, but such guaranty shall not apply 
to a bank's obligations as indorser upon bills rediscounted, nor 
to bills payable, nor to money borrowed from its correspondents 
or others. Banks which have fully complied with the provisions 
of the guaranty fund act are not required to give any further 
security for the purpose of being a depository of public funds, but 
such funds shall be secured in the same way private funds are 
secured. 

North Dakota: All deposits for which money or its equiva- 
lent, and for which full value has been received by the bank 
wherein such deposit is made shall be guaranteed, but the guar- 
anty provided for in the act shall not apply to a bank's obliga- 
tions as indorser upon bills rediscounted nor to bills payable, nor 
to money borrowed from its correspondents or others, nor de- 
posits otherwise secured, nor deposits upon which compensation 
in any manner or form or by whatever device has been promised 
or paid in excess of the rate of interest as limited in this act. 

Washington : Deposits not otherwise secured, but the guar- 
anty provided for in this act shall not apply to a bank's obliga- 
tions as an indorser upon bills rediscounted, nor to bills payable, 
nor to money borrowed from its correspondents or others, nor 
deposits of public money in excess of its capital and surplus. The 
guaranty of the guaranty fund shall extend to public funds, of, 
or under the control of the State, or any county or municipality 



190 MISSISSIPPI LAW JOUENAL 

within the State deposited in guaranteed banks to an amount 
equal to, but not in excess of, the capital and surplus of such 
bank if the custodian of such fund shall elect to deposit the same 
under the guaranty of such fund. 

(4) Maximum assessments in any one year: 
Oklahoma: One-fifth per cent and in fiscal years ending in 

1914, 1915, and 1916 an additional one-fifth per cent special 
assessment. 

Kansas : Not more than five assessments of one-twentieth per 
cent each of the average guaranteed deposits less capital and sur- 
plus shall be made in any one year. 

Texas: Two per cent of average daily deposits; but this limi- 
tation not applicable to first payment to the guaranty fund re- 
quired of any bank which shall hereafter elect to secure its de- 
posits in the depositors ' guaranty fund. 

Nebraska: Six-tenths of one per cent of average daily de- 
posits exclusive of public money otherwise secured, until the 
guaranty fund reaches the sum of one and one-half per cent of 
such deposits. 

Mississippi : Five assessments of one-twentieth of one per cent 
each, of the average daily deposits. 

South Dakota : One-fourth of one per cent of the average 
daily deposits, less the amount of the deposits not eligible to 
guaranty, annually, until the fund amounts to one and one-half 
per cent of the average daily deposits. 

North Dakota : Five assessments of one-twentieth of one per 
cent each of the average daily deposits. 

Washington: One-tenth of the average deposits eligible for 
guaranty, assessed annually, until the fund shall equal 3 per cent 
of all deposits eligible for guaranty in all member banks. 

(5) Rate of interest on outstanding warrants or certi- 
ficates of indebtedness : 

Oklahoma : Six per cent. 

Kansas : Six per cent unless a contract rate exists on the 
deposit, then the certificate shall bear the contract rate. 

Texas : Six per cent. 

Nebraska : Rate of interest shall be fixed by the court. 

Mississippi : Six per cent. 

South Dakota: If issued in favor of the bank to be sold by 
the Superintendent of Banks and proceeds paid to depositors, not 
more than 7 per cent, but if issued payable to the depositors for 
the amount of their claims, 5 per cent. 

North Dakota : Six per cent. 

Washington : Five per cent, if there is not sufficient money in 
the guaranty fund to pay depositors. 

OKLAHOMA 

The bank guaranty plan operated in Oklahoma for fif- 
teen years. During the first seven years of the law the fund 



GUARANTY OF BANK DEPOSITS IN EIGHT STATES 191 

went into arrears heavily on account of bank failures, but 
better conditions obtained for the five years following and 
in 1920 the guaranty fund showed a surplus. The post-war 
depression brought a severe test to the banks; credit and 
values collapsed in the stress of depression and numerous 
banks failed, resulting in plunging the guaranty fund deep- 
ly into debt. Over fifty bank failures occurred in 1921 and 
1922, and in the same period almost one hundred State banks 
nationalized. By the end of 1922 claims of depositors in 
failed banks ran the fund almost seven and a half million 
dollars into arrears, and the interest accruing on these un- 
paid claims was over three times as great as the current 
assessments levied. 

The Oklahoma guaranty law was repealed by an act of 
the legislature in March 1923. 13 At the time of the repeal 
there were to date outstanding banking board warrants of 
approximately a million and a quarter dollars. There was 
a number of unpaid deposits in failed banks for which no 
warrants were ever issued on account of the insolvency of 
the fund. It is estimated by the State Banking Department 
that there are at present about a million dollars of unpaid 
deposits. There is something like $220,000 cash on hand 
to apply to the outstanding banking board warrants. In 
addition to that, the State Banking Department holds over 
a million dollars of practically worthless assets belonging 
to the guaranty funds, by reason of bank failures. No pro- 
vision was made for paying off the debts of the fund. 14 Only 
the small proceeds recoverable from the liquidation of failed 
banks, plus the small amount of cash on hand, it would seem, 
are available for this purpose. Small comfort is given the 
depositors of failed banks by the provision of the repealing 
statute which reads : i i Provided, That the provisions of 
this section shall not relieve or release any bank, firm, or 
corporation, or any officer, stockholder, or director, or any 
other person from any obligation, assessment, or liability 
to the depositors' guaranty fund or to the depositors or 
creditors of any failed State bank, which obligation, assess- 
ment, or liability existed at the time of the passage and 
approval of this act." 15 

KANSAS 

The bank guaranty law of Kansas was in effect for 
twenty years ; the law became effective June 30, 1909, and 

13 Laws of Oklahoma, 1923, Chapter 137. 

14 Letter to writer from C. G. Shull, Bank Commissioner of the State of 
Oklahoma, November 19, 1929. 

15 Laws of Oklahoma, 1923, Chapter 137, Sec. 10. 



192 MISSISSIPPI LAW JOUKNAL 

was repealed March 14, 1929. The Kansas law was not 
obligatory npon all banks. The high point in the operation 
of the Kansas guaranty system was reached in February 
1922, when out of 1,108 banks in the State there were 714 
banks which were operating under the guaranty fund sys- 
tem. This number was gradually decreased by voluntary 
withdrawals and forfeitures, so that in January 1929, out 
of 854 State banks there were 34 banks which remained 
members of the guaranty system. 

Shortly before January 1926, sixteen guaranteed banks 
in Kansas withdrew from the fund and brought suit to 
determine the amount of their liability to the fund, there 
having been up to that time 78 failures among guaranteed 
banks. At that time there were outstanding guaranty fund 
certificates of approximately five and one-half millions of 
dollars. The Supreme Court of Kansas handed down a 
decision 16 to the effect that a guaranteed bank, upon with- 
drawal from the fund, was liable only to the extent of its 
bonds on deposit with the State Treasurer to guarantee 
the payment of assessments. Immediately following this 
decision the member banks began to withdraw from the 
fund, either voluntarily or by default in the payment of their 
assessments. 

The fact that the Kansas system was the principal one 17 
of the voluntary plans of bank guaranty makes it not in- 
appropriate to call attention to the amounts collected over 
a period of years for the credit of the guaranty fund. The 
guaranty law of Kansas provided that the bank commis- 
sioner could levy not to exceed five assessments a year of 
one-twentieth of one per cent of the average guaranteed 
deposits, less capital and surplus of each bank. Amounts 
received from assessments were as follows : 

1920 $ 85,379.79 1925 $342,890.51 

1921 91,007.81 1926 129,405.50 

1922 155,962.34 1927 24,896.28 

1923 74,692.12 1928 8,994.88 

1924 343,728.42 1929 1,321.00 

On March 14, 1929, the date on which the Kansas guar- 
anty law was repealed, the thirty-four banks which were 
still members of the fund and had paid their assessments 
regularly, demanded a return of the bonds which they had 
deposited with the bank commissioner to guarantee the pay- 
ment of their assessments. At that time a suit was institut- 
ed praying mandamus to compel the bank commissioner to 

16 121 Kansas Keports 151 (1926). 

17 The Washington law was optional, and in Texas the banks could choose 
between the guaranty plan and a bond security system. 



GUARANTY OF BANK DEPOSITS IN EIGHT STATES 193 

return the bonds pledged by the member banks. In an opin- 
ion delivered by Justice Richard J. Hopkins, the court held 
that the bonds were needed to pay claims against failed 
member banks, whose affairs had not been closed within 
six months of the time when the banks attempting to re- 
cover their bonds endeavored to withdraw from member- 
ship. 

The status of the Kansas guaranty fund certificates out- 
standing as of October 31, 1929, was $13,706,682.69, less 
dividends paid of $6,859,408.37, leaving a balance due of 
$6,847,274.32. The court held that these various certificate 
holders had a vested right in the bonds pledged by the mem- 
ber banks and the bank commissioner was not ordered to 
return the bonds. 18 No arrangements other than the con- 
tinued liquidation and collection of the assets of the failed 
banks were made to pay off the claims of the guaranty fund. 

TEXAS 

The Texas bank deposit guaranty plan was a dual system, 
since banks could choose between the guaranty plan and a 
bond-security system. Experience with deposit guaranty in 
Texas covered a period of seventeen years. During the first 
ten years comparatively few banks failed. Of the 983 State 
banks in 1920, all but 42 operate under the guaranty fund 
plan. From the early part of 1920 until the close of 1925 
about one hundred and fifty banks failed with a net loss 
to the guaranty fund of about thirteen million dollars. The 
immediate results brought about by this situation may be 
summarized : a large cash drain fell upon the solvent banks 
(The Texas law made no provision for the issuance of war- 
rants against the fund during periods of frequent failures) ; 
during the first half of 1925 nearly seventy State banks 
nationalized; many guaranty plan banks sought the right to 
switch over to the bond-security plan of guaranty; early in 
1925 a law was passed permitting the shift. The subsequent 
history of the Texas guaranty plan followed the usual 
course ; during the next two years about forty more banks 
failed, with further losses to the guaranty fund ; by 1927 all 
but twenty-five banks had withdrawn from the guaranty 
fund system; there were 721 banks under the bond-security 
plan by 1927, which meant that the guaranty fund plan was 
virtually dead. 

With the guaranty fund plan no longer extensively used 
in Texas, the bond security plan gave some protection to 

18 Letter to writer from H. W. Koeneke, Bank Commissioner of the State 
of Kansas, November 19, 1929. 



194 MISSISSIPPI LAW JOUENAL 

depositors until a decision rendered by the Supreme Court 
of Texas 19 made the latter plan ineffectual. The court held 
that "the bonds by deposit of which a State bank is per- 
mitted ... to secure its depositors by the bond security, 
instead of the State guaranty system may be those owned 
by the bank itself and constituting a part of its assets.' ' 
This meant that the Bank Commissioner was required to 
accept in lieu of a surety bond government and municipal 
bonds which were part of the bank's assets. Prior to this 
decision the bank commissioner had refused such bonds on 
the ground that they would not provide the additional secur- 
ity above the regular assets which the law intended. A bank 
could, under this interpretation of the law, after having 
withdrawn from the guaranty fund system, deposit some of 
its regular assets in the form of approved bonds with the 
banking commissioner and thus be free of any special lia- 
bility to depositors. 

The Texas guaranty law was repealed on February 11, 
1927. The amount outstanding against the guaranty fund at 
that time was $2,323,883.99. No arrangements were made 
by the repealing statute for paying off the liabilities against 
the guaranty fund. Claims against the fund have not been 
paid off, and, it is stated that several suits involving the 
fund will keep the matter in litigation for several years. 20 

SOUTH DAKOTA 

The guaranty fund system of South Dakota promised to 
be successful during the first five or six years of its opera- 
tion, for from 1916 to the beginning of 1922 the loss to the 
fund was not great; but the failure of about one hundred 
and forty banks during the next period of three years put 
the guaranty fund badly in arrears. The first real dissatis- 
faction with the mutual guaranty fund system did not result 
in the repeal of the guaranty plan outright ; instead, a statute 
was enacted requiring each state bank to build up a fund 
against its own failure only. 21 

19 Texas Bank & Trust Company vs. Chas. O. Austin, Bank Commissioner, 
115 Texas Reports 201 (1926). 

20 Letter to writer from J. E. Roberts, Deputy Bank Commissioner of the 
State of Texas, November 19, 1929. 

21 The law provides that each bank shall pay annually, in cash or ap- 
proved securities, about the same assessments as under the old law. The assess- 
ments are placed not in a mutual fund but with the state treasurer, who sets 
up a separate account for each bank, allowing its balance to be dormant or 
investing it in approved securities. When the account, with accruals, reaches 
an amount equal to the capital stock of the bank, no further assessments are 
levied against that bank and the entire amount is retained in trust only to in- 
demnify the creditors of that bank against loss on its failure. This amount, 
together with the double liability ordinarily imposed on shareholders in South 



GUARANTY OF BANK DEPOSITS IN EIGHT STATES 195 

In 1925 the legislature of South Dakota passed an act 
for the repeal of the guaranty system, to be effective Jan- 
uary 1, 1926. A petition was filed requiring submission of 
the act to referendum at the general election in 1926, and 
at this election the people by a small majority refused to 
ratify the act repealing the guaranty law. At this same 
meeting of the legislature a bill which proposed a tax levy 
to take up the outstanding certificates of indebtedness, then 
over twenty-five million dollars, was defeated. In 1925 and 
the first half of 1926 sixty-seven more banks failed ; the total 
liabilities against the guaranty fund amounted to over forty 
million dollars on June 30, 1926. A decision of the Supreme 
Court of South Dakota rendered in December 1926, holding 
that any state bank might convert into a national bank and 
withdraw from the guaranty system without liability by 
paying its current assessment, greatly weakened the bank 
deposit guaranty plan. 22 The fact that there was the forty 
million dollar deficit ; that probably more banks would fail ; 
and that already, at five per cent interest per annum on the 
guaranty fund deficit, the annual interest charge was two 
million dollars, made this decision very pleasing to banks 
that wished to nationalize. 

On July 1, 1927, the South Dakota mutual bank deposits 
guaranty law was repealed. The amount outstanding 
against the guaranty fund at that time was $42,879,516.21. No 
arrangements were made under the repeal statute for pay- 
ing off the claims against the guaranty fund. The amount 
still due depositors under the guaranty law is $40,058,559.47. 
This amount, however, will be reduced by liquidation 
of the assets of the suspended banks to approximately 
$25,000,000.00, it is estimated. 23 

NORTH DAKOTA 

The North Dakota guaranty system which went into ef- 
fect in 1917 ran into difficulties very early, due to the post- 
war depression. The total number of bank failures reached 
about one hundred and ninety by the end of 1925. By that 

Dakota banks, assures ultimately a fund against losses equal to three times a 
bank's capital. Laws of South Dakota, 1929, Chapter 73, See. 9016, amending 
Chapter 102, See. 12, Art. 3, Laws of 1915, and Chapter 123, Session Laws of 
1919, Chapter 54, Laws of 1927. 

22 Citizens' State Bank of Garden City vs. Smith, Superintendent of Banks, 
50 S. D. Eeports 579, 210 N. W. 990 (1926*). 

23 Letter to writer from F. R. Smith, Superintendent of Banks, State of 
South Dakota, November 26, 1929. 



196 MISSISSIPPI LAW JOURNAL 

time the total claims against the guaranty fund amounted 
to almost twenty million dollars; the maximum yearly as- 
sessment of about $180,000 at the time amounted to less than 
one-fifth of the interest accruing. More failures came after 
1925. In 1928 plans were considered for proposing a bond 
issue of twenty million dollars to pay off depositors of 
failed banks holding claims against the guaranty fund. The 
proposal was not adopted. 

The 1928 session of the North Dakota legislature passed a 
bill repealing the guaranty fund act of the State, the re- 
pealing act to become effective July 1, 1928 ; but before this 
date the people of the State circulated petitions, under the 
referendum law, and the bill was referred to the voters at 
the next general election, held in June 1930. The result of 
this election was 94,124 for repeal and 55,853 against repeal. 
The amount due from the guaranty fund to depositors of 
closed banks was $24,111,541.97 on October 1, 1929. No 
provision was made at the time of the repeal of the law to 
pay off this amount. 24 

WASHINGTON 

The experience of the State of Washington with bank 
guaranty was brief and unusual. The Washington system 
became effective in March 1917 ; it went out of existence in 
fact by the end of 1921, though the law was not repealed 
until 1929. 25 During the first four years of the operation 
of the Washington guaranty system no bank failures oc- 
curred among the guaranteed banks. On June 30, 1921, one 
hundred and twenty banks with guaranteed deposits ag- 
gregating seventy-one million dollars were members of the 
system. With two exceptions these banks were banks with 
total deposits of less than two million dollars each. The 
exceptions were banks with total deposits of over fifteen 
millions and eleven millions. On July 1, 1921, the larger of 
these two banks, the Scandinavian American Bank of Seat- 
tle, with guaranteed deposits totaling almost eight and a 
half million dollars, failed. This completely broke down 
the guaranty system in Washington. By the end of 1921 
every bank had withdrawn from the system. The liquida- 
tion of this bank was not completed until 1927. Depositors 
of that bank were paid eighty-five per cent of their claims, 



24 Letters to writer from Gilbert Semingson, State Bank Examiner of North 
Dakota, November 19 and December 3, 1929. 

25 Laws of Washing-ton, 1929, Chapter 11. 



GUARANTY OF BANK DEPOSITS IN EIGHT STATES 197 

of which the guaranty fund paid 1 ten per cent. 26 The only- 
reference in the repealing act to the balance due the de- 
positors of the failed bank is the section which reads : i ' This 
repeal shall not be considered as affecting any rights ac- 
crued or obligations incurred under said acts or either of 
them or the completion of any actions or proceedings begun 
under the provisions thereof, or the collection and distribu- 
tion of any funds under the provisions of said acts." 27 

MISSISSIPPI 

The Mississippi guaranty system went into effect May 
15, 1915. The law provided for five one-twentieth of one 
per cent assessments annually on total deposits, less capital 
and surplus. In the beginning the maximum assessments 
were not levied. Only one assessment was made each year 
for the first two years ; then two assessments were made a 
year; then three; then with a threatened depletion of the 
guaranty fund the full five assessments were made each 
year. The five assessments a year have been levied since 
1920. During the first ten years of the operation of the 
guaranty law twenty-eight banks failed, the majority during 
1921 and 1922; and until about the close of the first ten- 
year period it seemed as if the guaranty law would produce 
the results that it was intended to achieve by such a system. 

In May 1929 the Superintendent of Banks of Mississippi 
reported that fifty-two banks had been taken over by the 
Banking Department since the guaranty law went into ef- 
fect ; that the depositors in twenty-seven of the failed banks 
had been paid in full, in some of which it was not necessary 
to use the guaranty fund at all ; and that the deficit in the 
guaranty fund at that time was $3,074,288.71. 28 The total 

26 Letter to writer from S. Zeno Varnes, Deputy Supervisor of Banking, 
State of Washington, November 19, 1929. 

27 Laws of Washington, 1929, Chapter 11. 

28 The Mississippi Banker, Journal of the State Bankers Association of 
Mississippi, Vol. 13, No. 12, May 1929, pp. 55-56. 

Examination of the decisions of the Supreme Court of Mississippi under the 
guaranty law reveals a definite tendency on the part of the court to extend the 
benefits of the guaranty plan in as broad manner as possible. In Anderson, 
Bank Examiner, vs. Owen, (1916) 112 Miss. 476, 73 So. 286, the court stated that 
"the remedial and salutary effect of the statute should not be restricted or 
limited by any narrow interpretation. ' ' In Anderson, Bank Examiner, vs. 
Baskin and Wilbourn (1917), 114 Miss. 81, 74 So. 682, the court, En Banc, held 
that the general creditors are entitled to participate in the distribution of the 
assets of an insolvent bank along with depositors; the dissenting opinion of 
Justice Ethridge, in which Justice Cook concurred, in this case is of interest; 
see 35 Okla. 535, 35 Okla. 404, 33 Okla. 535, where the Supreme Court of 



198 MISSISSIPPI LAW JOUENAL 

assessments received for the guaranty fund from the over 
three hundred State banks runs about $300,000 a year. The 
interest on guaranty certificates outstanding is about $125,- 
000 to $135,000 a year, leaving only about $175,000 a year 
to be used in liquidating guaranty certificates outstanding. 
The State Superintendent of Banks has made this state- 
ment : 29 

"The time is rapidly coming when assessments will take care 
only of interest payments, and then would arise an intolerable 
condition. The only thing that can be done is to repeal the guar- 
anty act, applicable to the future. The banks now operating under 
the act should be required to retire the outstanding indebtedness 
against the fund, but no more should be issued. If the guaranty 
feature is repealed, it is my prediction that the banks would get 
together and quickly retire the outstanding certificates and get it 
behind them." 

At its meeting in May 1929 the Mississippi Bankers' 
Association adopted resolutions looking to the repeal of the 
guaranty law and appointed a committee to co-operate with 
the State Superintendent of Banks ' * to work out such terms 
and conditions for the repeal of the act as will meet with 
the approval of the State legislature." 30 

The 1930 session of the legislature of the State enacted 
a statute (Chapter 22, Laws of 1930) suspending the opera- 
tion of the guaranty of deposits law until outstanding cer- 
tificates are liquidated, at which time the guaranty law is 
to again become operative. The act provides for issuance 
of State bonds in the amount of about $5,000,000.00 for re- 
tirement of outstanding bank guaranty certificates issued 
prior to March 11, 1930 to depositors in failed banks. Banks 
will continue to pay assessments as in the past, such assess- 
ments to be used for the retirement of the bonds. Meantime 
depositors will be partially protected under a year-by-year 
payment plan under which banks are required to pay a 
three per cent annual assessment upon their tax-exempt 
surplus. By this method a depositors ' Protection Fund of 

Oklahoma held that depositors take prior claim to general creditors. Public 
funds are guaranteed under the Mississippi deposit-guaranty act: 114 Miss. 850, 
county funds; 131 Miss. 93, city funds; 100 So. 277, state funds. Fraud on the 
part of the bank 's officer did not constitute cause for not allowing the innocent 
depositor to claim protection under the guaranty act, 135 Miss. 110; see also, 
134 Miss. 639. In 134 Miss. 729 it was held that ''all deposits not otherwise 
secured" includes a special deposit as well as general deposits. See also, 102 
So. 279; 100 So. 179. 

29 J. S. Love, Superintendent of Banks, State of Mississippi, in the Mem- 
phis Commercial Appeal, news item, November 10, 1929. 

30 The Mississippi Banker, Journal of the State Bankers' Association of 
Mississippi, Vol. 13, No. 12, May 1929, p. 54. 



GUARANTY OF BANK DEPOSITS IN EIGHT STATES 199 

not to exceed $300,000.00 a year is to be collected from the 
banks. 

In Mangum vs. Love, Superintendent of Banks, heard in 
the Simpson County Chancery Court, Chancellor T. Price 
Dale held the act unconstitutional; but in Deposit Guaranty 
Bank and Trust Company vs. City of Jackson, Judge W. H. 
Potter in the Hinds County Circuit Court held that the 
statute is "clearly constitutional. ' ' Both of these cases 
were appealed to the Supreme Court of Mississippi, where 
they are now (January 1931) pending. 

NEBRASKA 

The Nebraska bank deposits guaranty law was passed 
March 25, 1909. From the start the banks of Nebraska, 
both state and national, were opposed to a guaranty law, 
an attitude which led the northern group of the Nebraska 
Bankers' Association to pass a resolution on April 23, 1909, 
a month after the passage of the law, voicing their dis- 
approval of the law and sanctioning actions seeking to test 
the legality of the measure. Very soon, therefore, a suit 
was filed in the name of fifty-two banks to test the validity 
of the law. 31 The Nebraska law had been largely patterned 
after the Oklahoma law. It is not surprising that the con- 
tention of the Nebraska bankers was much the same as that 
of the Oklahoma bankers in the litigation that had been 
commenced to test the legality of the Oklahoma guaranty 
law. 32 Among other things, the bankers contended that the 
guaranty feature of the law was an arbitrary and capricious 
exercise of power, in that it takes the assets of solvent banks 
without compensation and appropriates the same to the 
payment of private debts of insolvent banks ; that it was a 
taking of property for a private use without due process 
of law and without compensation ; that it was not a proper 
exercise of the police power, since the police power cannot 
justify the invasion of any property or contract right of the 
citizen granted him under the constitution; and that the 
principle which underlies the bank guaranty deposit laws, 
when carried to its ultimate legitimate result, means un- 
restrained socialism in State government. 33 

On June 30, 1909, a few days before the law was to go 
into effect, Circuit Judge Willis Van Devanter and District 
Judge Thomas C. Munger granted a temporary injunction 
restraining the State Banking Board from putting the law 
into operation. The same judges later decreed that the law 

31 176 Federal Eeports 999. 

32 Noble State Bank vs. Haskell, 219 U. S. 104. 

33 176 Federal Eeports 999. 



200 MISSISSIPPI LAW JOUENAL 

was unconstitutional and made the injunction perpetual. 
The judges held that the law appropriated the assets of one 
bank to meet the obligations of another, and that this was 
taking the property of one person without compensation to 
pay the debts of another, in violation of provisions of the 
Fourteenth Amendment to the Federal Constitution. The 
case was appealed to the Supreme Court of the United 
States. The court advanced the Nebraska case and con- 
sidered it with the Oklahoma 34 and Kansas 35 cases which 
were pending, and handed down a unanimous decision up- 
holding the constitutionality of all three laws. 36 Justice 
Holmes in his opinion overruled the decree of Justices Van 
Devanter and Munger and dissolved the permanent injunc- 
tion by which they had restrained the State Banking Board 
from putting the Nebraska law into operation. 37 

The Nebraska law had been in the courts nearly two 
years. The Attorney-General of Nebraska ruled that the 
banks would not be required to pay the assessments while 
the law was in litigation and the State legislature soon after 
amended the law omitting such assessments and provided 
that the assessments should begin on July 1, 1911. 38 

During the first ten years of the operation of the Ne- 
braska guaranty law only seven banks failed, with negli- 
gible loss to the fund. Then, as was the case in some of 
the other States, the post-war depression suddenly changed 
the situation. Nearly one hundred and forty banks failed 
from January 1921 until March 1928. The fund was placed 
badly in arrears. In addition to the banks already failed, 
over seventy banks in weakened condition were in March 
1928 being operated by the Guaranty Fund Commission. 
At that time, when the law had been in operation about 
seventeen years, over thirty-eight million dollars had been 
paid to depositors of failed banks, of which amount fifteen 
millions were paid out of assessments to the guaranty 
fund. 39 

In 1909, at the time of the enactment of the guaranty fund 
law in Nebraska, there were 659 State banks, with a capital 
of $12,000,000.00 and deposits of $71,000,000.00; in 1928 

34 Noble State Bank vs. Haskell, 219 U. S. 104, decided January 3, 1911. 

35 Assaria State Bank vs. Dolley, 219 U. S. 121, decided January 3, 1911. 

36 Shallenberger vs. First State Bank of Holstein, 219 U. S. 121, decided 
January 3, 1911. 

37 It is interesting to note that the day after his opinion was overruled, 
Justice Van Devanter was sworn in as an Associate Justice of the Supreme 
Court of the United States. See, Thomas Bruce Kobb, The Guaranty of Bank 
Deposits, Chapter 5, p. 136. 

38 Laws of Nebraska, 1911, Chapter 8. 

39 Guaranty of Bank Deposits, in Commerce Monthly of the National Bank 
of Commerce of New York, Vol. 10, January 1929, pp. 12-15, 27-30. 



GUABANTY OF BANK DEPOSITS IN EIGHT STATES 201 

there were 739 State banks, with a capital of $19,000,000.00 
and deposits of $268,000,000.00. This would seem to indi- 
cate great prosperity in the business of State banks in 
Nebraska. But the assessments exacted of State banks in 
Nebraska since the year 1920 aggregate in excess of $16,- 
000,000.00. Since 1920 the number of bank failures has 
been of alarming proportions : in 1920 the number of State 
banks was 1009; at the close of the year 1928 there were 
739 State banks, 270 State banks having ceased business 
because of insolvency in the eight-year period. From Jan- 
uary 1, 1929 to December 1, 1929, a period of only eleven 
months, 127 State banks failed. 40 

In December 1928 an injunction suit was begun in the 
District Court for Lancaster County by the Abie State Bank, 
in which it was joined by 558 other Nebraska State Banks. 
The suit was brought to enjoin the collection of a special as- 
sessment of one-fourth of one per cent of the average daily 
deposits from the State banks for 1928. It was alleged by 
the banks that the special assessment together with the reg- 
ular assessment to the guaranty fund was of such confisca- 
tory nature as would, in a few years, deplete or wipe out 
the entire capital stock of the State banks, since such assess- 
ments were already exceeding the net annual earnings of the 
banks. 41 The majority of the State banks, therefore, joined 
in this suit, and meantime declined to pay further assess- 
ments to the guaranty fund. 

The special assessment complained of in the Abie State 
Bank case was made December 15, 1928, by the Department 
of Trade and Commerce, for the benefit of the depositors ' 
guaranty fund, pursuant to authority conferred by Section 
8028, Compiled Statutes of 1922, as amended by Section 26, 
Chapter 191, Laws of 1923. The Act, as amended, follows : 

"If the depositors' guarantee fund shall, from any cause, be 
depleted or reduced to any amount less than one per cent of the 
average daily deposits as shown by the last semi-annual assess- 
ment statement thereof filed, the department of trade and com- 
merce shall levy a special assessment against the capital stock of 
the corporations governed by the provisions of this article, to 
cover such deficiency, which special assessment shall be based on 
the said average daily deposits, and, when required for the pur- 
pose of immediate payment of depositors, said special assessment 
may be for any amount not exceeding one per cent of said average 
daily deposits for the year 1923, and thereafter not exceeding 
one-half of one per cent of said average daily deposits in any one 
year. ' ' 

40 See briefs for plaintiff and defendant, Abie State Bank et al. vs. Arthur 
J. Weaver, Governor, et al., Nebraska Supreme Court, No. 27070. 

41 Ibid. See, also, U. S. Daily, IV, 2719, p. 15, December 12, 1929. 



202 MISSISSIPPI LAW JOURNAL 

A decision favorable to the banks was handed down by 
Judge Lincoln Frost of the District Court of Lancaster 
County, and the case was appealed to the Supreme Court of 
Nebraska. 

In a five to two decision the Supreme Court of Nebraska, 
on December 7, 1929, reversed the action of the District 
Court, and held that the special assessments on State banks 
were not confiscatory, but was a reasonable regulation 
and not a taking of private property without due process 
of law. The decision rests on three broad grounds : first, 
that unless it is clearly shown that a legislative act is against 
public policy or contravenes clearly a provision of the con- 
stitution, the courts have no right to set it aside; second, 
that similar enactments have been upheld by the Supreme 
Court of the United States ; and third, that the banks, hav- 
ing accepted the benefits of the legislation, and having made 
much in their advertising campaigns of the protection af- 
forded by the act, cannot now be heard to protest its va- 
lidity. 42 

A motion for rehearing and ultimate appeal to the 
Supreme Court of the United States was announced by at- 
torneys for the plaintiff banks. 

The exact amount of the guaranty fund deficit at this 
time cannot be determined for the reason that no one can 
ascertain exactly the amount of salvage which may ulti- 
mately be collected from assets of the failed banks. A legis- 
lative committee made an investigation in February 1929, 
estimating the deficit at over sixteen million dollars. Dis- 
regarding the salvage, the fund owes now, according to 
terms of the law, over twenty-five million dollars, and this 
is drawing interest at seven per cent per annum, which 
means that if the law had remained in effect and the assess- 
ments had been restored to their maximum, the income from 
these assessments would have been less than the annual in- 
terest accumulation. 43 The Nebraska guaranty fund system 
was repealed in March 1930. 44 

4 2 Abie State Bank et al. vs. Arthur J. Weaver, Governor, et al., Nebraska 
Supreme Court, No. 27070, December 7, 1929. For record of the case, see 
United States Daily, IV, 2719, p. 15. 

4 3 Letter to writer from G. W. Woods, Bank Commissioner of the State of 
Nebraska, November 12, 1929, and letter from L. K. Roberts, Chief National 
Bank Examiner, Kansas City, Missouri, December 5, 1929. 

4i At a special session of the Nebraska legislature held in March 1930, a 
statute was enacted repealing the guaranty of deposits law; under the terms 
of the act the Depositors' Guarantee Fund is discontinued, but there is pro- 
vided an annua] assessment of two tenths of one per cent, during a period of 
ten years, upon the average daily deposits of each state bank for the Depositors' 
Final Settlement Fund. 



THE RISING TIDE OF ADVOCATES 203 



THE RISING TIDE OF ADVOCATESf 

By Will Shafroth* 

Coincident with the tremendous changes in the industrial 
world in the last forty years, there have been profound 
changes in the world of education. These have been not 
only changes of method, but also, and perhaps of more sig- 
nificance, changes in the attitude of the people toward edu- 
cation, which in turn have been translated into vastly in- 
creased facilities. In 1890 the total number of students in 
the universities, colleges, and professional schools in this 
country was 173,000. Since that time the percentage of in- 
crease, decade by decade and year by year, has been grow- 
ing greater : 1900 showed an increase of twenty-nine per cent 
over 1890 ; 1910 was forty-eight per cent larger than 1900 ; 
and 1920 exceeded 1910 by fifty-seven per cent. The 1926 
enrollment was fifty-eight per cent greater than that of the 
last year of the previous decade, and in the last four years 
the increase in the number is estimated to be more than the 
entire student body of 1890. 1 More than 900,000 students, 2 
or in excess of five times the enrollment of 1890, are now 
being educated in the institutions of higher learning in this 
country. But even this mushroom growth is slow in com- 
parison with the results shown by the figures of law school 
attendance as they appear in the following table : 3 

~ 1889- 1899- 1909- 1919- 1924- 1925- 1926- 1927- 

lear 1890 1900 1910 1920 1925 1926 1927 1928 

Law school 4 4g6 12 408 19 498 24,503 42,743 44,340 47,357 48,953 

attendance >>>>>>> 

Percent of in- 
crease over last 176 57 25 74 gl 93 9g 
year of previous 
decade 

It will be seen that the law school enrollment over the 
last thirty-eight years has increased approximately eleven 
times. There are several apparent causes for these aston- 
ishing results. In the first place, the country has grown 

t Eeprint, American Bar Association Journal. 

* Adviser to the 'Council of the American Bar Association on Legal 
Education and Admissions to the Bar. 

1 Educational statistics from Department of the Interior, Bureau of Edu- 
cation Bulletin, 1928, No. 25. 

2 Estimated. 

3 From the Annual Eeview of Legal Education for 1929, published by the 
Carnegie Foundation for the Advancement of Teaching. 



204 MISSISSIPPI LAW JOUENAL 

vastly richer during this time and this greater wealth has 
been reflected in a higher standard of living for the major- 
ity of people, increased wages for the workingman, and an 
increased ability for the average wage-earning head of a 
family to give to his children advantages which were denied 
to him. Another cause has been the augmented complexity 
of modern life, sterner competition in certain fields of en- 
deavor, and as a result a pressing need for the best equip- 
ment which can be gotten. Both these reasons apply with 
added force to the profession of law. Here is a calling 
with a certain standing. A day laborer who can make his 
son into a lawyer has advanced him both in the social and 
economic scale. Furthermore, a lawyer needs to have 
knowledge outside the mere limits of his profession if he is 
to meet his clients of the business world on an equal footing 
and understand their problems. This has been one of the 
causes which has led to a demand for a liberal as well as a 
technical education among lawyers, with the result that the 
majority of the students now entering law schools have 
had at least two years of pre-legal college study. 4 

Another corollary of the desire to face the world with a 
complete set of tools has been the trend among law students 
away from office study and toward law school training. 
Fifty years ago the great majority of our lawyers were of- 
fice trained. Since that time as law school attendance has 
increased, office study has decreased. For the men who 
have had to support themselves while getting a legal edu- 
cation, the night school has sprung into being. But that 
has not meant that there is not abundant opportunity in the 
full time schools for those ambitious students wanting to 
work their way through. Mr. Walter J. Greenleaf of the 
Department of Education estimates that in the colleges and 
universities of this country, as a whole, a fifth of the men 
and a tenth of the women are entirely self-supporting, while 
about half of the men and a quarter of the women are con- 
tributing to their support by working part of the time. The 
existence of this condition has aided and abetted the drift 
from office study to law school, because many of the office 
study men in the past have had to earn their own living. 

But the principal factor has been the realization that it 
is no longer possible to obtain a thorough legal training in 
an office. Gone are the days when the head of an office had 
the time and inclination to expound to a neophyte under his 

4 The Carnegie Foundation Annual Review of Legal Education for 1929 
shows the number of students in law school requiring two years of pre-legal 
college work to be 25,639. 



THE EISING TIDE OF ADVOCATES 205 

care the doctrines of the law and their application as they 
had come under his observation. Instead of that the clerk 
may have the privilege of going to court and hearing the 
senior partner argue points of law having to do with the 
facts in one particular case, or, if he is industrious and per- 
severing he may even find a brief in the office on some point 
related to the subject which he may be engaged in studying. 
But no more can he count on the preceptorship and active 
tutelage of a practitioner. The practitioner is too busy ac- 
quiring more knowledge himself to be able to sacrifice any 
precious minutes or hours in going over his work with a 
student. And this condition is not to be lamented, for in 
nine cases out of ten the student will acquire far more in 
a law school than he would in an office. His teachers are 
specialists in the subjects in which they instruct and the in- 
struction is systematic and regular over a course which 
experience has shown can be covered in a given period of 
time. As William Draper Lewis well said : 5 

"The system by which a young man learned law in a law office 
has been dead for decades. The illusion that it still exists is one 
of those things that impede legal educational progress. To sit in 
a lawyer's office and read a law book, or to act as his typewriter 
or stenographer, is not to 'go through a law office' in the old 
sense of the word. The so-called office student of today learns 
his law not in the law office, but in the afternoon or evening law 
school. The law student has not left the law office, the law of- 
fice has left the law student. In the modern law office there 
is a place for a typewriter, a bookkeeper and a clerk ; there is a 
very real place for the law school graduate who is well-grounded 
in legal principles and knows how to find the law; but there is 
no place at all for the young man who wants to sit around and 
pick up the odds and ends of practice while he reads examination 
cram books or good or bad legal text-books." 

The failure of the States to realize this makes this fea- 
ture of our various systems of admission to the bar one of 
their most backward elements. Only four States refuse to 
recognize office study as full compliance with the require- 
ments of legal education, declining to permit the candidates 
entire legal training to be gotten outside of a law school. 
Of these West Virginia requires three years of law school, 
Colorado three years of training of which two must be in a 
law school, Wyoming three years of which one must be in a 
law school, and Kentucky two years of which one must be 
in a law school. There are then forty-four States where 
the type of legal preparation which was in vogue during the 

5 Excerpt from the speech of William Draper Lewis at the banquet given 
by the Conference of Bar Association Delegates, Washington, D. C, 1922. 



206 MISSISSIPPI LAW JOUENAL 

Civil War is still recognized as sufficient to qualify an ap- 
plicant to take the bar examinations, and this in spite of 
the fact that conditions are now much less favorable for 
office study than they were at that time. 

But are we going to bar the John Marshalls, the Abra- 
ham Lincolns, the Grover Clevelands? This threadbare 
argument has been so often refuted that it is not necessary 
to answer it now. Suffice it to say that the men who will 
be barred because they cannot go to law school will be 
only those who do not have the ambition and industry which 
would be required to put them ahead in any walk of life. It 
would seem that there could be but little question that the 
course of training at any residential law school would be 
superior to office study under present conditions, but some 
men who acquired their law under the old system still fail 
to see the light and do not admit this. A few statistics from 
typical States regarding this point are significant. 6 



Students from Resident Law Schools. No Law School Study 7 


Total 


Passed % Passed Total Passed % Passed 


California (1929) 440 


272 62% 110 27 24% 


Illinois (1924-1928) 3010 


2013 67% 131 47 36% 


Ohio (Dec. 1923-Jan. 1929) 3488 


2672 77% 329 186 56% 


Pennsylvania (1927-1929) 979 


603 61% 142 51 36% 



The Section of the American Bar Association on Legal 
Education and Admissions to the Bar has been pointing this 
out for years, and one reason it has not come home more 
definitely to the judges of our Supreme Courts and members 
of our legislatures is that there have been no comprehensive 
statistics on this subject. For this reason the Council is 
now asking the State Committees on legal education and 
the State Bar Examiners to furnish to it the results of their 
examinations in statistical form to show the percentage of 
those with every type of preparation who pass and who fail. 
With the co-operation of the local committees, very definite 
indications will be presented by the resulting figures, on 
which recommendations may be based. 

It is true that only a small percentage of applicants now 
present themselves to the bar with only office study prepa- 
ration. This, however, does not make the problem less seri- 
ous, for the reason that it is evident that they are the group 
with the poorest training, and are therefore the ones with 
whom the bar is most seriously concerned. It is not neces- 
sary to emphasize here the public interest which is in- 
volved in admitting to practice only those candidates who 
are qualified. That has been fully discussed at every meet- 

6 Statistics taken from reports of Bar Examiners. 

1 Study with correspondence schools not regarded as law school study. 



THE EISING TIDE OF ADVOCATES 207 

ing of the Section of Legal Education and Admissions to 
the Bar and in most of the speeches and articles on the gen- 
eral subject. The exponents of the "open door," who be- 
lieve in "opportunity for the poor boy" as opposed to qual- 
ification, had full hearing at the last meeting of the Section 
in Memphis, and were overwhelmed by a vote of more than 
ten to one when the American Bar Association Standards 
were reaffirmed. 

Progress in increasing the general educational require- 
ments has been remarkable in view of the fact that it was 
less than nine years ago that the American Bar 
Standards were adopted, advocating two years of pre-legal 
college training. Now fifteen States 8 have rules which de- 
mand that substantially all applicants for admission to the 
bar must have at least two years of college training, and in 
sixteen others 9 the State bar associations have given their 
endorsement to the American Bar Standards. These thirty- 
one States have approximately seventy-one per cent of the 
lawyers in this country, and in the final analysis it is 
through the lawyers that our standards of admission must 
be raised. 

Of course, even in those States where there are no re- 
quirements of training, there is still the bar examination 
hurdle to clear (except in Indiana where in many counties 
"a good moral character" suffices), and this is of inestima- 
ble benefit. In the spring and summer bar examinations of 
1929 only fifty-two per cent of the candidates throughout the 
country passed the bar examinations, and partial statistics 
covering the last seven years indicate the average number 
passing has been about fifty-five per cent. 10 The difficulty 
with this test is that it can be met by cramming and success 
in it is far from an infallible proof of legal education. Par- 
ticularly in some of our large eastern States this has given 
rise to schools or courses of instruction designed solely to 
enable the student to pass the bar. Another weakness is 
that it is applied with varying severity and in some States 
is so easy that eighty or ninety per cent of those taking the 
examination pass whatever their training. This is probably 
because of lack of interest or time on the part of those bar 



8 Colorado, Connecticut, Idaho, Illinois, Kansas, Michigan, Minnesota, 
Montana, New Jersey, New York, Ohio, Pennsylvania, West Virginia, Wiscon- 
sin, and Wyoming. 

9 California, Delaware, Georgia, Iowa, Louisiana, Missouri, Nebraska, 
Nevada, North Carolina, North Dakota, Rhcde Island, South Carolina, South 
Dakota, Utah, Virginia, and Washington. 

10 Taken from reports in "The Law Student" magazine. 



208 MISSISSIPPI LAW JOURNAL 

examiners, and it is suggested that some improvement can 
be made in this situation by circulating the examinations of 
all the States reciprocally among the bar examiners. Even- 
tually, perhaps, the system of a central board maybe evolved 
which will give examinations for the entire country with 
a part of the examination reserved for questions to be made 
up locally with reference to statutory law and local decisions 
of the State courts. 

The progress of the law schools of the country has been 
more rapid than that of the Standards of Admission. Four 
more law schools, Furman University School of Law, Uni- 
versity of Georgia Law School, University of Maryland 
School of Law, and the University of Mississippi School of 
Law, were admitted to the Approved List of the American 
Bar Association at the January meeting of the Council, 
making seventy-one schools out of a total of one hundred 
and seventy-seven which admit only students with two years 
of college, require three years of study for a degree if full 
time and four years if part time, and meet the Standards 
as to library and as to full time faculty members. The 
adoption of the Standards by the States has the tendency 
automatically to cause the law schools to meet those stand- 
ards, but it is to be said to the credit of our law schools 
that those of the better type have been ahead of our State 
legislatures and State supreme courts rather than following 
them. 

In view of the present tendencies Ave cannot sit back in 
the hope that the situation will work itself out through the 
influence of these better law schools. "We live in a rapid 
age; things change very quickly, and we must meet those 
changes as we see them taking place. The law school en- 
rollment and the number of candidates for the bar are in- 
creasing by leaps and bounds. We have over 160,000 1:L law- 
yers and 51,000 12 law school students. With these rapidly 
mounting numbers there is added need for a careful scan- 
ning of the ranks of the applicants. The more who apply, 
if our standards are not carefully guarded, the more we will 
admit who do not live up to that qualification of minimum 
training to which, at the very least, the public is entitled. 
And it cannot be denied that this is a responsibility which 
rests directly on the bar. 



11 Count of lawyers listed in Mart in dale's Law Directory in 1926 showed 
163,310 lawyers in the United States. 

12 Estimated. 



JUDGE J. A. P. CAMPBELL 209 



JUDGE J. A. P. CAMPBELL, 

DISTINGUISHED LAWYER, STATESMAN, SOLDIER 

AND JURIST 

By W. J. Pack* 

The subject of this sketch was born in South Carolina in 
1830. He was of Scotch-Irish descent. His father, Richard 
B. Campbell, was a prominent Presbyterian minister, a 
graduate of Princeton. His mother was a woman of edu- 
cation and culture. She taught her six children the rudi- 
ments of reading, writing, spelling and arithmetic. 

Judge Campbell, as a child, was unusually precocious. 
He had no recollection of when he could not read. His 
mother told him he could read well at four years of age. At 
five years of age, he was able to answer the 107 questions 
of the Westminister Shorter Catechism. 1 After attending 
the common schools of South Carolina he attended Davidson 
College of North Carolina. In 1845 he moved with his par- 
ents from South Carolina, to settle in Madison County, 
Mississippi. 

Young Campbell studied law under Simon Ford, a law- 
yer of prominence of that day. He seemed to have a natural 
aptitude for the law, for he was admitted to the bar in 1847, 
being then only seventeen years of age. He practiced his 
profession at Kosciusko until after the Civil War. 

At twenty years of age he married Eugenia S. Nash, of 
Attala County, daughter of Rev. W. W. and Nancy Nash, of 
the Baptist faith. She was an accomplished young woman 
of rare charm and beauty. Shortly after their marriage he 
joined the Baptist Church with his wife, to which both re- 
mained devout and consistent members, contributing large- 
ly of their means and service to the activities of the church. 
Eight children blessed this union : Charles C, Judge R. B., 
J. A. P., Jr., Mrs. Minnie Dameron, Newton N., Mrs. Ed- 
ward Yerger, William Noah and Eugenia ; only two are now 
living, Mrs. Minnie Dameron and Mrs. Edward Yerger, both 
of whom reside in Jackson. 

Like most young men of promise in his day, Judge 
Campbell had early political aspirations, and at twenty-one 

* Member of the Laurel, Mississippi Bar; former judge of the Mississippi 
Supreme Court; and Circuit Judge of the Twelfth District of Mississippi. 
l Daily Clarion-Ledger, September 25, 1914. 



210 MISSISSIPPI LAW JOURNAL 

years of age was elected to the legislature from Attala 
County, and became Speaker of the House at twenty-nine. 
It is said he was a man of attractive and imposing per- 
sonal appearance, standing six feet two in height. Bishop 
Charles B. Galloway, himself a native of Kosciusko, in writ- 
ing to an old friend of early reminiscence, thus describes 
Judge Campbell's physique: " Among the men at the bar, 
I remember most distinctly Hon. J. A. P. Campbell, young, 
tall, erect as a soldier, with long, wavy hair, graceful in 
every movement and handsome as a picture, the very em- 
bodiment of manly dignity and superb ability." 

A GrKEAT LAWYEE 

Though largely ' ' self-made, ' ' Judge Campbell ranked as 
an outstanding leader at the bar. It is said that he was not 
only an energetic and thorough student of the law, but was 
also a great advocate. Throughout his long experience as 
a lawyer, he reviewed Blackstone at least once every year. 
For several years before his appointment to the Supreme 
Court bench, he was associated with Judge Calhoun. Their 
law office was at Canton. The briefs in the Supreme Court 
at that time show that this firm appeared in all the impor- 
tant litigation of that section of the State. During the first 
session of the Supreme Court after Judge Campbell's ap- 
pointment, he was disqualified in ten of the cases then pend- 
ing on the docket, by reason of having been counsel therein. 2 
As a lawyer he was considered the equal of Harris, George 
and Yerger. 3 

The State University recognized his ability by offering 
to make him professor of law in 1870, which position he 
declined. In 1878 the University conferred upon him the 
honorary degree of L. L. D. After he retired from the 
Supreme Court, at sixty-five years of age, he was frequently 
retained by other lawyers in important cases in the Supreme 
Court. 

At a special session in 1894, the legislature, in its desper- 
ate efforts to raise revenue, passed a freakish act, directing 
the State Auditor to issue special warrants instead of cash 
warrants upon the treasury. These warrants were issued 
in bills ranging from $5.00 to $20.00, payable January 1, 
1896. These bills bore such similitude to the "greenback" 
bills of the United States, that the Treasury Department of 
the United States Government held them to be a violation 
of the Federal statute denouncing counterfeiting, and ac- 

2 52 Miss. 

3 Resolutions of the Supreme Court Bar adopted upon his death. 



JUDGE J. A. P. CAMPBELL 211 

cordingly, ordered the arrest of the Governor, Auditor and 
Treasurer. One of the ablest lawyers of the State was em- 
ployed to prosecute. Judge Campbell was employed for the 
defense. The Grand Jury, failing to indict, there was never 
a trial. 4 

At seventy-five years of age, he was still able to handle, 
with consummate skill, the most intricate problems of the 
law. The Jackson newspapers carried an interesting story 
of his appearing at this age before the Supreme Court in 
the celebrated case of John A. Knutt vs. Gerard Brandon, 
Administrator, involving $60,000.00. 

" Judge Campbell's argument was a masterly summing up of 
the celebrated litigation and, despite his advanced age, he talked 
for more than two hours and received the close attention of the 
members of the Supreme bench. His voice was full, strong and 
resonant, and the argument demonstrated the fact that his mind, 
so richly stored with legal lore, had lost none of its brilliancy. 
He still retains an acuteness of perception and lucidity of state- 
ment, coupled with masterful reasoning force, that many younger 
lawyers with much repute would give a great deal to possess." 

He was employed to assist the Attorney General in the 
case involving the constitutionality of our present primary 
election law. 5 

During his eighty-fourth year, Judge Campbell was in- 
terviewed by a news reporter, 6 and among other things, 
Judge Campbell said : "My opinion is often sought by law- 
yers, which shows that the legal profession considers my 
faculties not impaired in any way by age. ' ' 

In early life he formed habits of thrift and economy, 
made and saved a good deal of money, which enabled him 
to live comfortably in his old age. It was a habit of his life 
to refuse to pay postage on mail sent to him. It is related 
that a lawyer had been paid a thousand dollar fee to write 
a brief in a case pending in the Supreme Court. Not know- 
ing of this fixed habit of Judge Campbell's, and neglecting 
to ascertain the correct postage, the lawyer elected to mail 
his brief direct to Judge Campbell, who, unaware of the 
name of the sender, or the importance of the letter, on re- 
ceiving the usual notice of "postage due," refused to pay it. 
The brief was never filed, and the case afterward decided 
adversely to the lawyer. 

Measured by the time from his admission to the bar at 
seventeen, to his death at eighty-seven, he was seventy years 
a lawyer. Probably the oldest lawyer in the United States. 

4 Roland "The Heart of the South," Vol. 2, page 261. 

5 80 Miss. 617. 

6 Jackson Daily News, January 11, 1914. 



212 MISSISSIPPI LAW JOUBNAL 

Statesman and Soldiee 

Judge Campbell distinguished himself for his states- 
manlike service in the legislature, both as a member and 
speaker of the House. 

In 1861 our State was passing through the darkest chap- 
ter of her eventful history ; a constitutional convention had 
been called to assemble. Its chief purpose was to determine 
if Mississippi should secede from the Union. It can truth- 
fully be said that for learning, ability, patriotism, and nobil- 
ity of character, no superior body of men had ever before, 
or has ever since been assembled within our borders. Among 
its "luminaries of the first magnitude in the legal firma- 
ment," were Judge Wiley P. Harris, L. Q. C. Lamar, J. Z. 
George, Brooks, Marshall, Yerger, the two Claytons, Barry, 
Glenn, Clapp, Ellet and Alcorn. With these there were other 
men of distinction in various callings and professions. In 
writing of this convention, Judge Thomas H. Wood, for 
years an eminent member of our Supreme Court, says : 
"The tremendous responsibility resting upon the conven- 
tion was seen on every countenance. From Judge Harris, 
solitary, silent, introspective, and Lamar, brooding, ab- 
stracted and melancholy, downward through all ranks and 
classes, was an air of fixed solemnity." 7 Having taken the 
momentous step of adopting the ordinance of secession pre- 
sented by Mr. Lamar, as Chairman of the Committee, the 
Convention proceeded to select seven delegates to attend 
the Congress of delegates from seceding States, soon to meet 
at Montgomery, Alabama, for the purpose of forming a pro- 
visional government for the Southern Confederacy, and 
framing its Constitution. Judge Campbell was one of the 
seven. To be chosen by such a body of men, upon such an 
exalted mission, was the highest expression of confidence in 
his ability, loyalty and statesmanship. At this time Judge 
Campbell was just entering his thirtieth year, and was the 
youngest of the forty-nine famous men composing that 
memorable body. In speaking of these men, 8 Judge Camp- 
bell said: "I doubt if there was ever an abler body 
assembled since the formation of the Constitution of 
the United States," mentioning as his co-workers, such 
men as, Howell Cobb, Alexander H. Stevens, Toombs 
of Georgia, Tom Cobb, Ben Hill, Wiley P. Harris, 
Crawford and Barnwell. In the same interview he further 
says: "Contrary to the generally accepted opinion as to 
the leisurely methods of the times, the Confederacy's law- 

7 Publication Mississippi Historical Society, Vol. 6, page 91. 

8 Jackson Daily News, January 11, 1914. 



JUDGE J. A. P. CAMPBELL 213 

making body was a hard-working lot. Sessions were held 
throughout the morning and afternoons, and sometimes late 
into the evening. When we met at Montgomery it was not 
our intention to destroy the Constitution of the United 
States, as many charged, and this charge was base and false. 
We took the Constitution of the United States as our guide, 
and ever upheld it." 

For many years prior to his death Judge Campbell was 
the sole surviving member of the forty-nine whose names 
were subscribed to the Constitution of the Confederate 
States. 

In 1875 he was selected as a member of the Committee 
headed by J. Z. George to rout the miserable Carpetbaggers 
and re-establish democracy. The wisdom, courage and per- 
sistence of this Committee made it possible to free Missis- 
sippi of the worst scourge that ever afflicted a liberty-lov- 
ing people. No greater service was ever rendered, no higher 
duty was ever performed. 

After the organization of the Confederate Government, 
Judge Campbell returned to Mississippi and joined the Con- 
federate Army, in March, 1862, when he became Captain ofi 
Company K, Fortieth Mississippi Eegiment. Upon the or- 
ganization of the regiment, he was chosen Lieutenant Col- 
onel. The regiment was assigned to General Hebert's bri- 
gade, General Little 's division. He participated in the bat- 
tle of Iuka, and was* in the battle of Corinth, when fighting 
at the head of his Command, he was wounded, but was soon 
able to regain his regiment at Grenada, where the forces 
of the South were confronting Grant. He was at Vicks- 
burg before the siege, and while there, received notice of 
his appointment by President Davis to the rank of Colonel 
of Calvary and assigned to duty as a member of General 
Polk's staff, which position he held until the surrender. 

A Magnetic Okator 

Not only was Judge Campbell an able lawyer, a pro- 
found jurist, brave soldier and eminent statesman, but he 
was also a popular and magnetic orator, and was much in 
demand as a public speaker, especially before he was ap- 
pointed to the Supreme Court. In his autobiography, writ- 
ten by himself for his descendants shortly before his death, 9 
he says : "Before the War Between the States, the Fourth 
of July was annually observed in Mississippi, and barbe- 
cues were had all over the land. I was invited to deliver 
the oration at the Kosciusko barbecue on the Fourth of July, 

9 Clarion-Ledger, October 22, 1914. 



214 MISSISSIPPI LAW JOURNAL 

1848, and was several times afterwards engaged in like 
manner in Attala and Leake County. I frequently delivered 
an address before a school at Commencement exercises." 
He was Presidential Elector and supported Horace Greely 
for President in 1872. He made several speeches in this 
campaign. At a grand Greely rally at Holly Springs, at- 
tended by over seven thousand people, Judge Campbell 
seems to have been the principal speaker, and electrified the 
crowd by his eloquent plea for peace, fraternity and good 
will. 

The Commercial Appeal's report of the meeting thus 
describes his appearance on this occasion: "The first 
speaker introduced was Judge Campbell of Canton. Judge 
Campbell is a man of imposing appearance, something above 
medium height, possessing a clear, ringing voice, which was 
easily heard by the entire throng. He is an easy and pleas- 
ing speaker, with a remarkable flow of choice language." 
A shocking situation existed in Mississippi at this time. 
Keconstruction, with all of its woes, was afflicting the peo- 
ple of the South, and especially had the people of Missis- 
sippi suffered under carpetbag rule. Note his fearless ar- 
raignment of those responsible for such conditions. In de- 
ploring the apathy and coolness of people toward the Gov- 
ernment, he asked: "Why should such coolness character- 
ize this sunny land? . . . Why is it that ministers of the 
gospel proclaim the truth to empty benches? Why is it that 
everything in the land lags and seems to retrograde ? Why 
is it so with the thousands of the lately enfranchised? It 
is because of the corruption in high places, of the utter rot- 
tenness of the different departments of our Government, of 
the absence of moral rectitude in those who at present mis- 
represent the people. It is a verification of the scriptural 
phrase, that when the wicked rule the land mourneth. That 
Government which should have poured out blessings on the 
head of every citizen of this republic, has proved a curse. 
... At present, industry languishes throughout the land and 
it is with a feeling akin to distrust that we regard it. Sec- 
tionalism has, in the main, been the cause of this sad and 
deplorable condition. It culminated in 1861, when a sec- 
tional man was placed in the Presidential chair. The people 
became alarmed and the consequences was four years of 
bloody war and internecine discord, until in 1865, the Con- 
federate banner, the hope of thousands, went down and was 
lost f orevermore ; but when it did go down, it was surround- 
ed by a halo of glory that commanded the admiration of 
the habitable world. When all was lost the noble southern 



JUDGE J. A. P. CAMPBELL 215 

was ready to transfer his allegiance to the general govern- 
ment. That noble patriotism which found echo in the breasts 
of thousands of the best, noblest and bravest of the sons 
of the South; that same patriotism which prompted the 
hardy sons of the north and the western prairies to buckle 
on their armor and go forth to do battle for the honest 
conviction of his conscience, and also inspired the Confed- 
erate to fight unto death for his honest convictions, and 
was ready to be transferred to the Government of the Con- 
stitution. ' ' He then eloquently pleaded that the surest way 
for restoration of peace and harmony was for all to co- 
operate in the support of Greely. 

In 1858 Judge Campbell delivered another notable ad- 
dress at Kosciusko, upon the Public Life and Character of 
the Lamented Ex-Governor John A. Quitman. At this time 
Judge Campbell was only twenty-eight years of age. The 
address made such an impression upon the hearers, that a 
number of them joined in a written request for its publica- 
tion. The Attala Democrat published it in full. Even at 
this age he showed that remarkable faculty for concise ex- 
pression of thought, so noticeable in his written opinions. 
In describing the statesmanship of Governor Quitman, he 
used language that we could aptly apply as descriptive of 
himself : 

"Gen. Quitman was a great statesman. He was not a mere 
politician, in the common acceptation of that much abused term, 
acquainted with newspaper lessons of political science and fa- 
miliar with the tricks of parties and the slang of party warfare, 
but was a statesman in the true sense of that term. He was a 
man of profound thought and of well trained mind — a thorough 
lawyer, familiar with the fundamental principles of constitu- 
tional construction,- and eminently qualified to grapple with the 
most difficult questions of governmental policy. A statesman, 
he never thought of sacrificing principle to present expediency, 
as is too frequently done in our country. A bold man, he was 
not disposed to dodge any question through fear of the con- 
sequences of meeting it. A patriot, his personal ambition was 
always laudable, and was subservient to the good of his country. 
An ingenious man, guided by principles, having a reason for his 
motives and actions, clinging to truth as his polar star, he had 
no concealment, but was ever ready boldly and frankly to avow 
his real sentiments. He was not afraid to advocate any sentiment 
his judgment approved and never sought to conceal the con- 
sequences likely to result from the measures he advocated." 

Another oration disclosing his oratorical ability was 
delivered at Canton in 1874, on "The Lost Cause.' ' The 
occasion was Confederate Memorial Day. The town was at 
that time occupied by Federal soldiers, during the Freed- 



216 MISSISSIPPI LAW JOURNAL 

man's Bureau regime, but this did not deter him from de- 
livering an eloquent and powerful defence of the cause of 
the Confederacy. Pen never wrote, nor tongue ever ut- 
tered a more beautiful tribute to the southern soldier, and 
a truer and greater defence of his cause, than is portrayed 
in this address. It was reproduced and published in the 
Daily Clarion, February 23, 1887. It would do violence al- 
most, to wrench an excerpt from the address. To fully ap- 
preciate its beauty, one must read it in its entirety. The 
writer cannot resist quoting one paragraph : 

"Though a lost cause, — though branded by authority of the 
victor as treason and its followers as traitors, — I for one am not 
ashamed of it. My holiest memories cluster around it. No power 
can storm the fortress of a resolute heart. When the Confed- 
erate banner was furled, we as Confederates, in sadness accepting 
the result, while weeping bitter tears of unfeigned sorrow and 
experiencing the poignancy of keenest grief at the termination 
of our efforts and disappointment of our fond hopes, in good faith 
assumed allegiance to our present government, and have main- 
tained it ; but it would be hypocricy to pretend it was by choice, 
as itf is treason to the memory of our gallant dead to confess the 
heart-condemned falsehood that our cause was not just. Our 
cause was just, our purpose honorable and upright, and attempted 
to be maintained by as noble a band as ever struck valiant blows 
for freedom and right. Falsehood cannot blacken it ; malignity 
and calumny cannot disgrace it ; misapprehension cannot dis- 
honor it. It can never become odious until the men and women 
of the South forget what they owe to the memory of the 
gallant dead. Can this day ever come? Never, while the highest 
virtues of manhood find worshippers. Patriotism will always 
command respect. It is a principle inseparable from ourselves 
as social beings. Heroism excites admiration, wherever dis- 
played. It demands and receives tribute from the human heart, 
even though exhibited by the savage Modoc. When beheld in 
upholding the right, admiration swells into enthusiasm. We but 
do honor to the nobler impulses of the soul, in cherishing with 
grateful and affectionate remembrance the memory of our sleep- 
ing heroes, and are only true to ourselves, in annual commemora- 
tion of their sacrifices, by decorating their nameless graves. They 
were patriots. They loved their country and died for it. They 
were heroes, and displayed their heroism in gallantly striving to 
maintain the right." 

In 1890 Judge Campbell was invited by the legislature to 
deliver an address at a joint memorial session on the life 
and character of Jefferson Davis. How well he acquitted 
himself as an orator is evidenced by the wide publicity given 
this speech by the press of the country. The legislature 
ordered the address printed and the same is preserved in 
pamphlet, copies of which may be found in the State Library 



JUDGE J. A. P. CAMPBELL 217 

and in the libraries of the University, A. & M. and M. S. C. 
W. As an example of his style at this time, being now past 
sixty years of age, two excerpts are quoted. In speaking 
of the courage of Mr. Davis, he said : 

"His courage was sublime. 

"I speak not merely of the sort of courage that enables one to 
bear himself well on the battlefield. Most men have that. But 
have reference to that high moral courage based on truth, and 
faith in the right ; that moral virtue, which sustains its possessor 
under all circumstances and prompts and enables him to follow 
his convictions of duty in the face of a frowning world, if need 
be. 

"He had a lofty contempt of everything low and mean. His 
methods were all direct, open and manly. He was incapable of 
truckling, he did not know how to act the small politician. He 
had faith in the triumph of right. He was governed by principle 
in his actions, and depended on his high character, and public 
appreciation of it for his success. His public and private life was 
pure ; his conduct always upright. He was always truthful, hon- 
orable, brave, faithful, and consistent in its maintenance of the 
right as he viewed it. 

"A distinguishing feature of his character, and the most prom- 
inent one, was his devotion to duty. Duty was his inspiration .and 
guide. Where it pointed, he followed, whatever the sacrifice, or 
the peril. He left his pleasant seat in Congress to lead Mississip- 
pians on fields of carnage, in a foreign land, in obedience to its 
behest. When severely wounded in battle, he remained in com- 
mand all day. He resigned a full term of six years in the Senate 
of the United States, to be the candidate of his party for an of- 
fice he did not desire, and in the face of the strong probability 
of defeat. So, when he accepted the presidency of the Confed- 
erate States, with its exacting duties and perplexities, no man 
had a higher sense of duty. He consecrated his life, and devoted 
all the energies of his earnest nature to the service of his country. 

"His conception of public office was, that it is a public trust — 
a place to render the very best service he could — to do duty for his 
country and he toiled assiduously, and unremittingly for this 
purpose, and with this high resolve, animating and sustaining 
him. 

"There was never a more faithful servant, and this imports 
far more than is generally understood ; for the multitude has little 
conception of the corroding care; the consuming anxiety; the 
pressing and almost crushing sense of responsibility, and the 
ceaseless effort of him who is entrusted with great responsibility, 
and is fit for it, and worthy of it. They may throw care aside, 
when the day's business is over, and sleep sweetly and soundly 
in knowing nothing of the perturbed hours and disturbed rest of 
those in public positions of great responsibility, on whose suf- 
ficiency and fidelity the welfare and happiness of society largely 
depends. The many are patriotic, undoubtedly, for it is their 



218 MISSISSIPPI LAW JOUENAL 

interest to be. There has been, and there is, such a thing as 
patriotism as the chief inspiration to holding office. There are 
those who hold office to serve their country, surprising as this 
announcement may now be regarded by many. 

"Though the multitude were reproached for following Christ, 
for the loaves of which they had eaten, there were yet some who 
sought Him from higher motives than the loaves and fishes. 
Though of the ten lepers healed by Him, nine failed to return to 
give Him thanks, that was His due and their duty, there was one, 
who was mindful of his obligation. And although the per centum 
of those actuated by proper motives and mindful of their just 
obligation may still, as of old, be small; there are yet some, who 
desire public office to render service to their country; and Mr. 
Davis was a conspicuous example of this, small class, it may be, 
but which certainly exists." 

Kef erring to the vicarious suffering of Mr. Davis, Judge 
Campbell continued : 

"He gave his life for us. He was a vicarious sufferer for the 
whole South. He bared his bosom, and received in his person, 
as our representative, the envenomed hate of the North. It was 
on our account he was imprisoned. For us he wore manacles ! 
Because he was our chief, chosen by us for his exalted position, he 
was reviled, traduced, denounced and pursued as the chief of 
malefactors. Every venomous shaft hurled at him was aimed at 
us. He was simply our representative, abused because he was 
such. His life was part of the history of the Confederate struggle. 
Because he survived the Confederacy, and proudly maintained an 
unrepentant attitude, refusing to sue for pardon or seek relief 
from political disabilities, he continued, long after the war was 
over, to provoke bitterness of large numbers of the people of the 
North, who never lost an opportunity to asstail him. The injustice 
of this is manifest, for, if he chose to remain under political dis- 
abilities and asked no favor, none had any just cause of com- 
plaint." 

Judge Campbell's unusual gift in the portrayal of char- 
acter is probably explained by the nobility of his own char- 
acter, which enabled him to see and describe the beauty of 
character in others. His speech at the memorial service of 
the bar upon the death of Judge Wiley P. Harris is a strik- 
ing proof of this gift. 10 Of the many characteristics of this 
nationally famous lawyer, depicted in this masterful ora- 
tion, Judge Campbell said : 

"He was a jurist of the very highest order, but not a legisla- 
tor — a lawyer and not a law-giver — an expounder, not an origina- 
tor — able to pass on the creations of others, but not himself a 
creator. 

"He once remarked to me that he had never originated any- 
thing. His capacity and tastes were not in that direction. He 

10 Daily Clarion-Ledger, January 7, 1892. 



JUDGE J. A. P. CAMPBELL 219 

was not an orator. With a fine person, splendid intellect, choice 
vocabulary and master of a vigorous style, he was not a popular 
speaker for the masses, and he knew it, and did not often embark 
in that field of effort. 

' 'He was a model in the court room — there he was at home. 
His tastes and habits and acquirements fitted him to shine in that 
sphere. His bearing towards court and counsel and his dealing 
with the subject before him were admirable, and when the court 
did not agree with him, and he lost, he used the customary priv- 
ilege of defeated counsel sparingly and with discretion. He ad- 
mitted the possibility of the court being right and himself wrong. 
His service as a judge in his early professional life probably 
moulded his professional character by begetting the habit of look- 
ing .carefully at both sides of his case. He did not jump to con- 
clusions, but reasoned to them ; was quick of perception, but did 
not possess intuition or anything resembling it. He was a thinker, 
and required time for thought — reflection. He did not, like some, 
see everything he could ever see in a subject, at a glance, but with 
opportunity for reflection he saw more than they. His power of 
generalization was remarkable, but he did not elaborate details as 
some men do. There were members of the profession, his con- 
temporaries, superior to him in the matter of details. He was the 
acknowledged leader of the bar of the State — whose unchallenged 
pre-eminence was so generally recognized as not to excite envy. 
His position at the bar was unique, envying no one, envied by 
none — without rivalry or jealousy. In all my association with 
him, I never heard him disparage another. He was not profuse 
in praise — not much given to laudation of men, but he was even 
freer from carping envy. He could afford to be liberal. His 
own recognized position was such that complimenting his fellows 
did not in any way endanger himself, but this was not the in- 
spiring cause of his course in this respect. It sprang from his 
sense of justice, which was as strong in him as in any man I ever 
knew. He was honest, upright, just, eminently so. He did not 
belong to those who are afraid to do justice to others lest they 
detract from themselves; or who selfishly regard all praise be- 
stowed on others as so much subtracted from what in their view 
is due themselves. He was far removed from that class. He was 
tolerant of the views of others, and wise as he was, could and did 
accord to others their dues." 

Codifier of Laws 

Two of the Codes of Mississippi, the Code of 1871, 
Mississippi's tenth Code, and the Code of 1880, Mississip- 
pi's eleventh Code, bear the name of J. A. P. Campbell as 
Codifier. He was appointed as one of the three commis- 
sioners in 1870 to "revise, digest and codify the laws of the 
State, to propose such alterations thereof, and such new 
laws as they may deem expedient. ' ' The work of the com- 



220 MISSISSIPPI LAW JOURNAL 

missioners was completed and the new Code submitted to 
the legislature for adoption. This was under the Carpetbag 
rule of Mississippi, and Judge Campbell says the work of 
the Commission was marred by an incompetent legisla- 
ture. 11 He was never satisfied with this Code, and it did 
not meet with the approval of bench and bar. It was the 
first Mississippi Code, however, in which the sections there- 
of were numbered consecutively throughout the volume. In 
this respect it was a recognized improvement over former 
Codes, and the plan has been followed in all subsequent 
Codes of our State. The legislature of 1878 provided for 
the compilation of a new Code, and authorized Judge Camp- 
bell, then one of the Supreme Court Justices, to perform 
this arduous duty. In January, 1880, he had completed the 
work and submitted the same to the legislature. It was 
adopted with but few amendments. He was further au- 
thorized to superintend its publication, supervise its order- 
ly arrangement as to chapters, sections, citations, index, 
etc. The Code, when published, was virtually the sole and 
complete work of Judge Campbell, and stands as a great 
monument to his ability as a law-giver. 

This Code abounds in many needed reforms in our stat- 
utory laws. It contains practically two hundred original 
sections, written by Judge Campbell, none of which were 
ever held unconstitutional. This Code contains the first 
statute enacted in the United States abolishing dower and 
curtesy, and the first to completely emancipate married 
women from the common law disability of coveture. It also 
contains many reforms in the tax laws resulting in vast 
saving to the State, and it radically reformed our court 
procedure. Other wholesome reforms carried in the new 
Code were: (1) The almost complete abolition of estates in 
joint tenancy and entirety, a new section declaring that all 
conveyances and devises of land to two or more persons 
jointly, even to husband and wife, should vest title in such 
grantees or devisees as tenants in common, unless other- 
wise expressly provided by grantor or devisor. (2) Enab- 
ling creditors to set aside conveyances fraudulently made 
by debtors to hinder, delay and defraud them before their 
debts had been reduced to judgment. (3) The abolition of 
private seals and the extinguishment of all distinctions be- 
tween sealed and unsealed writings. 13 Judge R. H. Thomp- 

11 Autobiography supra. 

12 

1:5 Judge Pi. II. Thompson on Codes of Mississippi, paper read at State 
Bar Association, 1926, page 44 Proceedings. 



JUDGE J. A. P. CAMPBELL 221 

son relates 14 some interesting reminiscences touching some 
of these reforms. It is said that former Chief Justice Pey- 
ton, of our Supreme Court, recognized by many lawyers of 
his day as being more learned in the common law than any 
Judge who ever presided in that Court, strenuously objected 
to the abolition of private seals. Addressing Judge Camp- 
bell he said: "You have ruthlessly destroyed all the learn- 
ing of a century on the subject of seals; I have spent many 
years of my life endeavoring to master the subject and now, 
sir, you have thrown the fat in the fire." To this Judge 
Campbell replied, "Judge, there is nothing in the world to 
prevent you continuing your studies of the law of seals to 
the end of your life and I trust, sir, your study of the sub- 
ject will be interesting. " When another old lawyer of that 
day first read the new section abolishing private seals, he 
was heard to utter the following soliloquy : 

"Beneath this lies all that remains of Lucus Sigilli, a character 
of ancient date, whose mission was to give peculiar solemnity to 
documents. Emigrating to this State in its earliest days, he served 
his day and generation to a good old age, and was gathered to his 
fathers, generally mourned by the members of the legal profession. 
He left surviving him only one relative, now in the keeping of 
corporations. Obit November 1, 1880. His last request was that 
this epitaph should be under Seal. (L. S.) " 

When the same old lawyer read further in the new Code 
and was amazed to find that Dower and Curtesy had been 
abolished, he thus soliloquized : 

"Venerable relics of antiquity, you have come down to us from 
a former generation. You have survived the wreck of empires 
and change of dynasties. Born away back in the womb of time, 
whereof the memory of man runneth not to the contrary, you have 
outlived the War of the Roses, passed safely through the Pro- 
tectorate, crossed the ocean, survived the great American Revolu- 
tion and rode out the storm of the late War Between the States. 
Whatever attendants were absent from the bridal altar, you two 
at least were always there ; and when the bride and groom mur- 
mured, 'with all my worldly goods I thee endow,' you as priest 
and priestess sealed the covenant. Like shades, you followed the 
twain blended into one and when either fell, one of you admin- 
istered the balm of consolation to the survivor. If pure religion 
and undefiled be to visit the fatherless and the widow in their 
affliction, thy mission has been akin to it. Venerable priest and 
priestess of the common law, farewell ! You have been pleasant 
in your lives and in death hath not been divided." 

The preparation of this Code was a noble work for both 
Judge Campbell and the State, and has written his name in 
unfading letters upon the list of those whom we love to 

14 Proceedings State Bar Association, supra. 



222 MISSISSIPPI LAW JOUENAL 

honor and admire. "Judge Campbell was the author of 
more legal reforms than any other lawyer, judge or legisla- 
tor in the State." 15 Former Chief Justice Whitfield paid 
him this deserved compliment : 

"The most radical legislation this State has perhaps known 
was that part of the Code of 1880 abolishing dower and curtesy, 
emancipating married women from the disabilities of the common 
law, abolishing private seals and all obsolete doctrines connected 
with them and simplifying and perfecting the system of pleading, 
and the forms of conveyances of land. Every one of these re- 
forms was tremendously radical, but is there an intelligent man 
in the Commonwealth who would hesitate to say that every one 
of them was pre-eminently wise ? The great thinker and profound 
lawyer who prepared that Code, and secured those changes in the 
body of the law, did not stop to inquire whether they were radi- 
cal. Finding them needed and wise, he secured their adoption; 
and their adoption will constitute, while we have a jurisprudence, 
a large part of the fame justly gathered about his name as a great 
lawyer and a great judge. It took wisdom to frame these reforms, 
and ability and courage to secure their adoption. It was the good 
fortune of the people of Mississippi that he had all three of these 
qualities in supreme degree." 

A Profound Jurist 

Eminent as a statesman, valiant as a soldier, eloquent 
as an advocate, and wise as a law-giver, it was as Judge 
of the courts of our State that Judge Campbell ranked co- 
equal with the most illustrious sons of Mississippi. 

In Deuteronomy we read, "And I charged your judges 
saying, Hear the causes between your brethren and judge 
righteously between every man and his brother and the 
stranger. Ye shall not respect persons in judgment ; but ye 
shall hear the small as well as the great." 16 One of the 
sages has said that "A judge should hear courteously, an- 
swer wisely, consider soberly, and decide impartially." It 
may be truly said that Judge Campbell's judicial career was 
founded upon these precepts. He came to the Circuit Court 
bench in 1865, after the close of the Civil War, being" elected 
in the Kosciusko district. He was re-elected without being 
a candidate, but in the meantime, the Federal Government 
had prescribed the oath of allegiance, which he was unable 
to take. For his district attorney he had Col. Sol S. Cal- 
houn, afterward a distinguished Supreme Court Justice and 
president of the Constitutional Convention in 1890. A clip- 
is Proceedings State Bar Association 3909. 
16 Deuteronomy 1:15-16. 



JUDGE J. A. P. CAMPBELL 223 

ping from a Kosciusko newspaper thus refers to a term of 
court held by Judge Campbell : 

"His Honor, J. A. P. Campbell, has been presiding with his 
usual splendid ability as a lawyer and a judge. Indeed it may be 
said without the fear of successful contradiction, that the charge 
of Judge Campbell to the Grand Jury, at this term of the Court, 
was the ablest and most thorough ever delivered in the State, and 
that its effect upon the community was very fine. Col. Sol Cal- 
houn, the accomplished District Attorney, has been on hand, faith- 
fully discharging his duty." 

Judge Campbell came upon the Circuit Court bench at 
a time of great confusion due to the problems growing out 
of the overthrow of the Confederacy. State currency was 
of doubtful status; business transactions, including credits 
and debits predicated upon law and authority were all in- 
volved because of the failure of the war. Confusion worse 
confounded was further injected by the misconceived and 
mischievous thrust of the Freedman's Bureau, with its as- 
sumed jurisdiction over race and labor questions. Notwith- 
standing these and many other difficulties, the judges of the 
old South, of which Judge Campbell was an outstanding 
example, rendered invaluable service in upholding law and 
order. 

Upon the signal victory of Democracy in the memorable 
campaign of 1875, home rule was re-established. John M. 
Stone was now Governor. The Supreme Court in 1876 was 
composed of H. F. Simrall, Ephriam G. Peyton, both old 
citizens of the State, and Jonathan Tarbell, a Union soldier 
from New York, who had settled in Scott County after the 
war. Peyton and Tarbell were Eepublicans, all three being 
appointees of Governor Alcorn, under the Constitution of 
1869. From 1833 to 1870, our highest appellate court was 
known as i i The High Court of Errors and Appeals. ' ' The 
Constitution of 1869 created a "Supreme Court" of three 
judges, to be appointed by the Governor, by and with the 
advice and consent of the Senate. The State was divided 
into three districts and a judge was to be appointed for each 
district, but might come from any part of the State. The 
term was to be for nine years, but to begin with, the terms 
were to be respectively for three, six and nine years. In 
drawing for terms, Judge Simrall drew for nine years, 
Peyton for three, and Tarbell for six years. 17 The Court 
elected Peyton as Chief Justice, who resigned and was suc- 
ceeded by H. H. Chalmers in 1876 for the remainder of the 
Peyton term, when Judge Simrall was made Chief Justice. 
On May 10, 1876, Judge Tarbell 's term expired and Gov- 

17 Roland "The Heart of the South," Vol. 2, page 449. 



224 MISSISSIPPI LAW JOURNAL 

ernor Stone appointed J. A. P. Campbell. The appoint- 
ment of Judge Campbell came unsolicited and unexpectedly. 
Thus began eighteen years of service on the Supreme bench, 
for at the end of his first term he was re-appointed by 
Governor Lowery. Judge Campbell was a member of the 
Supreme Court in continuous service longer than any other 
member since its creation, with the exception of our present 
able Chief Justice Sidney M. Smith, who is now serving his 
twenty-first year, comparatively a young man and in per- 
fect health. Judge Campbell was twice Chief Justice. The 
Code of 1880 provided that the Judge whose term was first 
to expire should be the Chief Justice. Judge Chalmers had 
become Chief Justice under the act. His term expired in 
1882, and although re-appointed, the law operated to make 
Campbell Chief Justice. His term expiring in 1885, and 
being re-appointed, made way for Judge Cooper to become 
Chief Justice, who, in the meantime, had been appointed to 
fill out the unexpired term of Judge J. Z. George, resigned 
to enter the United States Senate. James M. Arnold was 
appointed in 1885 to fill out the unexpired term of Judge 
Chalmers, deceased, and in regular order immediately be- 
came Chief Justice. Upon the re-appointment of Judge 
Wood, in 1891, then Chief Justice, Judge Campbell again 
became Chief Justice. The Code of 1892 changed the plan, 
since which time the Judge of the longest continuous service 
on the bench becomes Chief Justice. 

During Judge Campbell's first two years on the Supreme 
bench, its personnel was Simrall, Chalmers, Campbell; the 
next three years : George, Chalmers, Campbell ; the next 
four years : Arnold, Cooper, Campbell, and the remaining 
three years of his tenure, Wood, Campbell and Cooper. 

Lawyers will perhaps differ as to which of these periods 
of time our Supreme Court had the highest rank. I venture 
to state, however, that all lawyers wall agree that during 
the entire eighteen years of Judge Campbell's tenure, the 
Court would compare favorably with any Supreme Court 
of the United States. The opinions for this 18 years' period 
fill nineteen volumes of our Reports, 52 to 70 inclusive. In 
these opinions we find reflected the style, the character and 
the wisdom of the individual Judge. What a galaxy of legal 
luminaries! Although all have finished their course and 
gone to their reward, their opinions live on and will con- 
tinue as torches to light our legal pathways. For elegance 
of style, for grammatical accuracy and rhetorical beauty, 
the opinions of Chalmers and Wood are outstanding. The 
opinions of these two distinguished Justices, if segregated 



JUDGE J. A. P. CAMPBELL 225 

and bound in separate volumes, would, within themselves, 
be interesting and instructive legal literature. Whereas the 
opinions of Judge Campbell would be incomplete unless ac- 
companied by the reporter's statement of the facts. The 
opinions of Judge Campbell have been subjected to some 
criticism by the bar because of their brevity and his habit 
of leaving it to the reporter to state the facts. But for 
clarity of thought, conciseness of expression and soundness 
of decision, the opinions of Judge Campbell are excelled by 
none. His opinions probably announce more law in the 
fewest words than those of any Judge who occupied the 
Supreme bench prior to and during his tenure. Lowery and 
McCardle's history of Mississippi says of Judge Campbell: 
"It is no disparagement to others to say that no abler man 
ever adorned the Supreme Bench of Mississippi.' ' 

The character of cases mostly occupying the courts of 
Judge Campbell's day were, as a rule, different from those 
of today. There were no suits growing out of the operation 
of automobiles. In fact, there were very few damage suits. 
An entire volume of reported cases during his tenure will 
show no cases listed under the title of master and servant. 

Possibly the most celebrated case decided during Judge 
Campbell's long tenure was Jefferson Davis vs. Bomar, 
Executor, et al., 55 Miss. 671. This case was a controversy 
between Jefferson Davis, Ex-President of the Confederacy, 
as complainant, and against some of the heirs and devisees 
of his deceased brother, Joseph E. Davis, and against gran- 
tees under a deed made by said decedent. Jefferson Davis 
claimed title by parol gift and by adverse possession to 
"Brierfield," a large plantation in Warren County. The 
record title to the land had always been in Joseph E. Davis. 
Jefferson had occupied "Brierfield" for many years — more 
than ten — during the interim when not engaged in public 
service. Joseph executed a deed conveying "Brierfield," 
together with "Hurricane," his home plantation, shortly 
after the surrender, to Benjamin P. Montgomery and his 
two sons, Isiah and T. W., these grantees being negroes 
and former slaves of the Davis family. The purchase price 
was $300,000.00, payable nine years after date, with interest 
at 6%, payable annually. At the date of the execution of 
this deed, Jefferson Davis was a prisoner of the Federal 
Government, confined at Fortress Monroe. Joseph E., prior 
to the Civil War, was a prominent planter, a former lawyer, 
and had amassed a large fortune. Subsequently to the 
execution of the deed Joseph E. Davis made his will, in 
which he named the children of his brother, Jefferson, as 



226 MISSISSIPPI LAW JOURNAL 

some of the devisees, making to them a liberal devise. The 
will expressly included, as part of the assets, the Mont- 
gomery notes. Jefferson was named as one of four execu- 
tors. Upon his returning to Mississippi, he qualified as one 
of the executors of the will and for a few years prior to the 
suit assisted in the execution of the will. Pittman and Pitt- 
man, able lawyers of that day, represented Jefferson Davis 
and Harris and George appeared for the defense. The de- 
cision of the case turned upon three questions: (1) Was 
Jefferson Davis the legal owner of "Brierfield"? (2) Has 
his conduct been such as to estop him from claiming its 
proceeds? and (3) Does his position as executor debar him 
from asserting his rights? Each member of the Court, 
Judges Campbell, Chalmers and Simrall, wrote masterful 
opinions, replete with logical and powerful reasoning. The 
case was decided favorably to Mr. Jefferson Davis. Chief 
Justice Simrall wrote the dissenting opinion. The case is in- 
teresting from the viewpoint of history and human interest, 
as well as the legal points discussed and decided. The re- 
ported case sets out the testimony of the witnesses, some 
of whom were negroes recently freed from slavery, and their 
language is typical of slave dialect, and some were prom- 
inent citizens, including distinguished members of the Davis 
family. "Resolved, that the dissenting opinion is sounder 
and supported by better reasoning and authority than the 
majority opinion," would probably prove an interesting 
subject for debate by a law class. 

The writer did not come to the bar until after Judge 
Campbell's retirement, but older lawyers relate that what- 
ever his written opinions might lack because of brevity, was 
fully supplied by his impressive voice and manner of de- 
livery of his oral opinions. As illustrative of this wonder- 
ful magnetism, we quote from a newspaper comment of one 
of these old-time lawyers : 

"I was present in the Supreme Court room at Jackson, when 
the Chief Justice read his opinion in a case where the defendant 
had been convicted in the lower court of murder. On his trial he 
had offered evidence of an alibi, but the trial judge instructed 
the jury that evidence of an alibi was one that could easily be 
fabricated and that the jury should regard the evidence with sus- 
picion. 

"Chief Justice Campbell was apparently six feet or more in 
height, with coal black hair and long beard, and was as magnifi- 
cent a specimen of manhood as I had ever seen. As he read the 
opinion of the court he stretched himself to his full height, his 
voice was clear and his eyes snapped as he said: 'The defense 
of an alibi is a legitimate one and the evidence of the alibi should 



JUDGE J. A. P. CAMPBELL 227 

be left to the jury without any instructions from the court cal- 
culated to throw suspicion upon it. The judgment of the lower 
court is reversed and this case remanded for a new trial.' As he 
spoke the last words his voice rang out like the blast of a trumpet 
until the court echoed and re-echoed." 

Upon Judge Campbell's retirement from the Supreme 
bench in 1894, appropriate resolutions were adopted by the 
bar, not only at Jackson, but in several Counties. Honorable 
T. A. McWillie, noted lawyer of Jackson, was one of the 
lawyers who delivered an eloquent address on the presenta- 
tion of resolutions before the Supreme Court. Among other 
things Mr. McWillie said : 

"If we have to deplore the loss to the public service of one the 
results of whose talents, learning and industry stand like a sup- 
porting arch in the temple of our jurisprudence ; if we have to 
regret that we are not longer to enjoy an association that has 
taught us how wisdom may be tempered by courtesy and good 
will, and greatness lose none of its majesty in the intimacy of 
friendship ; we have yet the rare pleasure of observing the close 
of a judicial career that lacks nothing of completeness and to 
which honor and usefulness have added every adornment. 

"This is high praise, but it is based upon facts, facts that we 
love to dwell upon and that we are not content to leave to the 
reporter of the events of our time; and I feel moreover, in refer- 
ring to them that we need apprehend no suggestion of error from 
any quarter where learning, dignity, independence and true worth 
of character have their proper recognition." 

His Home Life, Old Age, and Death 

In recounting the achievements of our distinguished men, 
we too often fail to notice the sacrificial love and influence 
of the good wife in the home, as the chief inspiration of the 
man. Judge Campbell graciously acknowledged the help 
his wife had been to him : "My darling wife was an impor- 
tant factor in my success. She was a member of an influ- 
ential family and herself exceedingly popular, which con- 
tributed much to my early advancement, ' ' was a part of his 
last written message to his children and grandchildren. 18 
Her death after fifty-six golden years of unbroken com- 
panionship added to the loneliness and sorrow of his old 
age. Her memory remained vivid and sacred to him. In 
speaking of her to his children, invariably it was "Your 
precious mother." From her he had no confidences or con- 
cealments. To her he unbosomed all the sacred secrets of 
his generous heart. He sought her judgment and approval 
of his every plan and purpose. The beautiful tributes, 

18 Autobiography, supra. 



228 MISSISSIPPI LAW JOUEXAL 

spoken and written of her evince the esteem in which she 
was regarded by those who knew her best. Miss Kate M. 
Power, eminent as a writer, paid eloquent tribute to her 
memory. 19 Would that space permitted us to quote more 
than excerpts from this beautiful tribute : 

"A life at once so simple and so strong; in which was mingled 
in such ideal proportions abiding faith, a hope that knew no limit 
and a charity that encompassed all who needed its compassion!" 

"To those who knew her best no thought can come of any time 
when she was not a Christian. Her religion was her life, and it 
grew in sweetness and in strength until it had attained almost 
unto perfection." 

Of the sacrificial service of this splendid woman Miss 
Power said : 

"No task was ever too hard; no sacrifice too great; no journey 
too long for her, if it could avail to serve a friend." 

Of the devotion to her distinguished husband the tribute 
proceeds : 

"Surely she had done for him, who has been her first and 
dearest earthly thought through all their married years, 'only 
good, all the days of her life,' and even beyond. For the memory 
of her must sweeten his sad heart as a flower whose fragrance is 
immortal." 

The legislature recessed to attend the funeral of Mrs. 
Campbell ; of this incident it was said : 

"Standing, rank on rank, in the great Church's rear, were the 
members of the legislature, there, officially, as a mark of honor. 
And, while their presence would have pleased her, (could she 
know), because it was a proof of that high place in which men hold 
her husband, and it would not have pleased her more than did 
the presence of a group of little ones from the Baptist Orphanage 
— now motherless anew since this good friend is gone." 

"But, among the many causes for quick-starting tears and 
aching hearts, none touched us more deeply than did the grief- 
blanched faces of the sightless 'little ones' who, since Mrs. Camp- 
bell's first coming to Jackson, have known her for their truest 
friend and helper. It verily seemed to me, as the tears fell in 
quick succession from the eyes of one of these blind girls she had 
loved, that her gentle hand must reach down from on high to 
wipe the tears away!" 

Judge Campbell came into old age through many sor- 
rows, although he philosophically balanced these against his 
many blessings, and was not embittered or disappointed. 
His last days were spent under the kind and devoted min- 
istrations of his beloved daughter, Mrs. Minnie Dameron, 
with whom he lived after the death of his wife. He was 
frequently interviewed by news reporters, and men of re- 

19 Clarion-Ledger on death of Mrs. J. A. P. Campbell. 



JUDGE J. A. P. CAMPBELL 229 

nown. On one occasion he was interviewed by Dr. Frederick 
Bancroft, historian and a writer of note from Washington 
City. After the interview Dr. Bancroft stated that he re- 
garded Judge Campbell as one of the truly great men of the 
South, and deplored the fact that a stenographer was not 
kept employed to take down Judge Campbell's opinions on 
matters past and present. 

Death came to Judge Campbell on January 10, 1917, 
within two months of his eighty-eighth birthday, after a few 
days of illness. At nine o'clock on the day of the funeral, 
all six members of the Supreme Court, with the clerical 
staff, together with a large array of lawyers, met at the 
late home of the departed jurist, and with a number of 
Confederate veterans, formed an escort of honor, accom- 
panying the hearse to the State Capitol, where the body 
lay in state for five hours, during which time throngs of 
friends filed by to view for the last time the patriarchal 
features of the " Grand Old Man of Mississippi." 

Funeral services were held in the First Baptist Church, 
after which the body was placed in Greenwood Cemetery 
beside the grave of his beloved wife, whose going preceded 
his by more than ten years. 

To such men of which Judge Campbell was an outstand- 
ing type, this generation owes a debt of everlasting grati- 
tude. It is fitting that we take time to recall their courage, 
their sacrifice and their achievements; our society, our 
peace, our happiness and our civilization itself, stand as 
monuments to their heroic deeds. In honoring them, we 
honor ourselves. 



MISSISSIPPI LAW JOURNAL 



IN MEMORIAM* 

The annual memorial services were held according to the 
custom of some years before the Mississippi Supreme Court 
on its convening September 8, 1930. After the opening of 
Court, Hon. D. W. Heidelberg, Chairman of the Mississippi 
State Bar Association Committee, was asked by Judge 
Smith to take charge. 

Memorials were read with respect to the following mem- 
bers of the Bar : 

ROBERT SITMAN STEWART, of Liberty, who was 
born in Greensburg, Louisiana, February 15, 1880, and died 
March 24, 1930, having been admitted to the Bar in 1902. 
His wife and four children survive him. Mr. Stewart was 
serving as State Senator at the time of his death, represent- 
ing Amite and Wilkinson counties, and was an able and 
capable lawyer. 

LEROY PERCY, of Greenville, who was born in Wash- 
ington County during the Civil War and died in December, 
1929, a citizen of Greenville, Washington County. A quota- 
tion from the resolutions read before the court is appro- 
priate here : 

"LeRoy Percy was a native of Washington County, 
Mississippi, the son of a distinguished father, the late 
Colonel W. A. Percy, a gallant soldier, a wise statesman, a 
great lawyer and a most excellent gentleman. His mother 
was Nannie Armstrong Percy, one of the South 's noble 
women. He attended the public schools of Washington 
County and graduated at the University of the South, 
Sewanee, and was a law graduate of the University of 
Virginia. 

" After his graduation in law he returned to Greenville 
and joined his father and the late Colonel W. G. Yerger, in 
the practice of law under the firm name of Percy, Yerger 
& Percy. At that time the Greenville bar was composed of 
men of great learning and profound lawyers and it is a 
deserved but high compliment to say that LeRoy Percy 
immediately took front rank at the bar. 

"He held only one public office, that of Senator from 
Mississippi in the Congress of the United States. While in 
service in the Senate he demonstrated his ability as a states- 
man on many occasions. 

* Mrs. Lucy Somerville Howorth, Secretary, Committee on Obituaries and 
Memorials of tho Mississippi State Bar Association. 



IN MEMORIAM 231 

"Returning to Greenville after the expiration of his term 
in the Senate he resumed the practice of law with his son, 
W. A. Percy, and D. S. Strauss, under the firm name of 
Percy & Percy, and continued in the practice until his death. 

"As the outstanding citizen of the Mississippi Delta, 
LeRoy Percy was always wide awake to the needs of his 
people and always served them devotedly and unselfishly. 
He answered every call without thought of self and his wise 
judgment usually solved every problem for the best. 

"During the recent Great War, being over the age to 
bear arms in defense of his country, he joined the Y. M. 
C. A. in France and worked untiringly in that great service. 

"He did more than any man to solve the Delta's greatest 
problem, flood control, and it is due to his memory to say 
that in a large measure it is through the efforts of this great 
citizen that peace, happiness and contentment will soon come 
to our people and they will no longer have to face the menace 
of the flood waters of the Mississippi. 

"In probably the last public address of this great citi- 
zen, made in Greenville, he said : ' The time may not be far 
distant when I shall rest in the bosom of the soil of Wash>- 
ington County, among loved ones and friends and if it can 
be said of me that I fought a good fight, I am more than 
satisfied. ' 

"On Christmas Day in the bosom of the soil of Washing- 
ton County, and among loved ones and friends, he was laid 
to rest, and truly can we say of this great citizen, lawyer and 
statesman, that he ' fought a good fight' always. This great 
leader gone from our midst will be remembered so long as 
any of us live. ' ' 

ALBERT TATUM DENT was born in Noxubee County, 
Mississippi, and died in Macon in December, 1929, his widow 
and eight children survive him. Mr. Dent served as Mayor 
of Macon for many terms, and served in the State Senate in 
1894, 1906, 1924 and 1928. He was a loyal Mason and a 
devout member of the Presbyterian Church. He had prac- 
ticed law for more than forty years and was a student and 
scholar as well as an able and resourceful practitioner. His 
knowledge of Constitutional law was notable. 

MAJOR PAT HENRY died May 18, 1930 in Brandon. 
He was born in Cynthia, Madison County, Mississippi, Feb- 
ruary 12, 1843, and moved to Brandon when 18 years of 
age and lived there all the balance of his life. He was edu- 
cated at Mississippi College and Nashville Military College. 
He was one of the first to enlist in the Confederate Army 
and was promoted to the position of Major of the 14th 



232 MISSISSIPPI LAW JOURNAL 

Mississippi Regiment before the end of the war. He was 
admitted to the bar in 1873. Major Henry served two terms 
in the State Honse of Representatives, one term in the State 
Senate, and was a member of the Constitutional Conven- 
tion of 1890. He served two years as U. S. District Attorney 
for the Southern District of Mississippi, having been ap- 
pointed by President Cleveland and served with distinction 
two terms in Congress as Representative. "No grander 
soul was ever clad in human frailty and his passing marked 
an epoch not only in the annals of Rankin County, which 
he loved so well, but in his beloved State of Mississippi." 

J. W. CASSEDY was born July 22, 1876 in Summit, 
Mississippi; he died in September, 1929. His widow and 
three children survive him. Mr. Cassedy was a graduate of 
the Law School of the University of Mississippi and main- 
tained a law office in Brookhaven at the time of his death. 
His practice extended throughout the State. He was a great 
lawyer, and one of the most formidable adversaries at the 
bar. Mr. Cassedy was extraordinarily able in the cross 
examination of witnesses, and was retained in many cases 
to assist in the trial. "In his death the State has lost a 
faithful, patriotic man and the bar, one of its best and most 
loved members. " 

SAMUEL HARDY TERRAL was born in Quitman on 
July 15, 1872 and died September 5, 1930. He was educated 
in the public schools and Southern University at Greens- 
boro, Alabama. He was admitted to the bar in 1894. He 
was an able and successful lawyer, being president of the 
Bank of Quitman at the time of his death. His wife and 
daughter survive him. Mr. Terral was a Mason, a Shriner, 
and a member of the Knights of Pythias and of the Meth- 
odist Church. He served as Mayor and Alderman of Quit- 
man. 

JAMES A. TEAT, of Jackson, was born in Spring Dale, 
Attala County, Mississippi, and died in Jackson March 25, 
1930. He practiced law after graduation from Millsaps 
College, in Kosciusko, from 1900 to 1911, when he was ap- 
pointed Circuit Judge. After serving as judge, Judge Teat 
moved to Jackson where he built up a large practice. Two 
daughters survive him. Judge Teat was recognized as a 
lawyer of outstanding ability, as an honest and upright 
Judge and as a man with a wide acquaintance and many 
friends. 

MOSES D. LANDAU, a distinguished member of the 
Vicksburg bar, was born in Greenville and died in Vicks- 



IN MEMORIAM 233 

burg in 1930, leaving surviving him his wife and daughter. 
Mr. Landau never held public office, but always took a deep 
interest in civic and political affairs. "As a lawyer he was 
diligent, able, learned and wise," and as a "member of the 
Mississippi bar he was one of its brightest ornaments. " 

ELLIS W. PATRICK was born April 29, 1895 in Rankin 
County and died in Jackson October 27, 1929. Mr. Patrick 
served in the Field Artillery during the World War, and 
is survived by his wife and six children. He graduated in 
both the literary and law departments of the University of 
Mississippi and practiced in Jackson until his death. He 
had established a good practice and was a capable and 
courteous lawyer. 

After the conclusion of the reading of the resolutions, 
short and appropriate talks were made by the following 
members of the bar : 

George Butler, D. W. Heidelberg, T. J. Wills, C. 0. Jaap, 
Jr., R. L. Dent, W. T. Bennett, and G-. Q. Whitfield. 

The service was closed on behalf of the Court by a short 
and impressive address by Judge J. Gr. McGowen of the 
Supreme Court. 



MISSISSIPPI LAW JOURNAL 

PUBLISHED QUARTERLY, BY THE 

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ASSOCIATE EDITORS 

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The Journal aims to print matter of merit and interest and, although 
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OFFICERS OF MISSISSIPPI STATE BAR 
ASSOCIATION, 1930-1931 



PEESIDENT 
George Butler, Jackson 

VICE PEESIDENT 

Hanun Gardner, Gulfport 

SECEETAEY-TEEASUEEE 

Louis M. Jiggitts, Jackson 

EXECUTIVE COMMITTEE 

George Butler, Jackson S. C. Mize, Gulfport 

Hanun Gardner, Gulfport E. M. Kelly, Vicksburg 

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DELEGATES TO THE AMEEICAN BAE ASSOCIATION, 1930 
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ALTEENATES 
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NOTE : The names and addresses of all other officers, committeemen, 
and members of the Mississippi State Bar Association are contained in the 
August, 1930, issue of the Journal. 

(235) 



236 MISSISSIPPI LAW JOUENAL 



NOTE AND COMMENT 



Total and Permanent Disability Under Insurance Contracts. — In a 
late case (Metropolitan Life Ins. Co. vs. Lambert, 128 So. 750), the Supreme 
Court of Mississippi held that one was totally and permanently disabled with- 
in the meaning of his contract of insurance even though after the injury and 
before suit was brought he was following the occupation of a nightwatchman 
and continued so to do some four months after the filing of the suit and before 
trial thereof. The part of the contract in question read as follows: 

"Upon receipt *** of due proof *** that any employee insured here- 
under *** has become totally and permanently disabled, as the result of 
bodily injury or disease, so as to be prevented thereby from engaging in 
any occupation and performing any work for compensation or profit, the 
Company will *** pay equal monthly installments ***." 
In arriving at its conclusion the Court said in part as follows: 

' ' That the appellee has engaged since his injury, in working as a 
night watchman does not necessarily indicate that he is not totally disabled 
within the meaning of the policy. If his physical condition be, and at the 
time of the trial was such that, in order to effect a cure, common care and 
prudence required that he cease attempting to work — and his physician 
so testified — he was totally disabled within the meaning of the policy." 

The holding of the Court in this case is directly in line with the holding 
of the Court in Serio vs. Equitable Life Assur. Soc, 124 So. 485, in which a 
similar contract was construed in favor of the insured. As regards the contract 
itself these cases are on all fours. In deciding the Serio case the Court cites 
with approval the case of Metro Cos. Inc. Co. vs. Cato, 74 So. 114. The con- 
tract in that case, however, was essentially different in that it provided for 
compensation "where the injuries *** continuously and wholly disable and 
prevent the insured from performing any and every kind of duty pertaining 
to his occupation." It is quite easy to see that this contract is different from 
the one in question in the Serio and Lambert cases, in that that contract pro- 
vided payment only where the insured was prevented by disability from carry- 
ing on not only his own occupation, but also any other gainful occupation, and 
performing any work for compensation or profit. 

It seems to the writer that in failing to give effect to the distinction be- 
tween the two contracts in the cases cited, the Court has gone beyond the 
proper limit of construction. 

That the clear weight of authority is with the holding of the Court in 
Metropolitan Casualty Ins. Co. vs. Cato cannot be doubted. Bro. of Locomo- 
tive Firemen $ Enginemen vs. Aday, 97 Ark. 425, 134 S. W. 928, 34 L. E. A. 
(N. S. 126; Davis vs. Midland Cos. Co., 190 111. App. 338; Kelly vs. Supreme 
Court, I. O. F., 195 111. App. 501; National Life 4' Accident Co. vs. O'Briens 
Ex., 159 S. W. 1134, 155 Ky. 498; Young vs. Travelers Ins. Co., 80 Me. 244, 
13 A. 896; James vs. U. S. Cos. Co., 113 Mo. App. 622, 88 S. W. 125; Gross 



NOTE AND COMMENT 237 

vs. Commercial Cos. Ins. Co., 101 A. 169; Continental Cos. Co. vs. Wynne, 36 
Okla. 325. 

It is submitted, however, that there is a clear cut distinction between this 
case (Metropolitan Cos. Co. vs. Cato) and the line of authorities in accord with 
it, and the Lambert case. They are based upon entirely different contracts. 

The contract in the Lambert case specifically and purposely limited the 
liability of the company to a very narrow field, and as a consequence of the 
small protection afforded, only a small premium was charged and paid. 

Mr. Cooley in his work on Insurance says : ' ' The provision may limit total 
disability to the inability to carry on any and all kinds of business. Under 
such a clause the insured must be unable to perform not only the duties of his 
usual occupation, but the duties of any other occupation. ' ' Cooley 's Briefs on 
Insurance, Vol. VI, p. 5548. Supreme Tent of Knights of Maccabees of the 
World vs. Cox, 60 S. W. 971; 25 Tex. Civ. App. 366; Lyon vs. Railway Pas- 
senger Assur. Co., 46 Iowa 631 ; Supreme Tent of Knights of Maccabees of 
the World vs. King, 79 111. App. 145. 

The Supreme Court of Iowa has held that a farmer, by the loss of a leg 
is not prevented "permanently, continuously and wholly from performing any 
work or following any occupation for compensation or profit" within a dis- 
ability insurance policy. Hurley vs. Bankers' Life Co., 198 Iowa 1129, 199 
N. W. 343, 37 A. L. B. 146. 

So where the contract provided that the insured must be unable to follow 
' l his usual or other occupation ' ' one who, though unable to follow his own 
trade or profession, could perform the duties of another occupation, could not 
recover. (Albert vs. Order of Chosen Friends, 34 Fed. 721.) But the duties 
he can perform must belong to some recognized trade or occupation, and it 
is not sufficient that he can perform occasionally light duties not connected 
with any occupation. Starling vs. Supreme Council Royal Templars of Tem- 
perance, 66 N. W. 340, 108 Mich. 440, 62 Am. St. Eep. 738. 

The practical business of insurance requires every company to issue many 
different kinds of policies, covering a variety of hazards and subject to many 
conditions. As the hazards increase or diminish, the liability increases or 
diminishes, and this requires that the sum charged as a premium be regulated 
by and be adjusted to the liability assumed. 

Where the premium charge is small, the number of hazards must be cor- 
respondingly small, and this can be done only by limiting the number of 
hazards covered and excluding such hazards as the policy is not intended to 
cover. 

It is undisputed in the evidence in the Lambert case that the insured was 
not prevented by disability from engaging, for some six months, (during 
which months the Court permitted a recovery under the policy of disability 
benefits), in an occupation (to-wit, that of night watchman) and was not 
prevented during said months from performing work for compensation. 

It is respectfully submitted, therefore, that in the Lambert case the Court 
by its construction has written a broader contract than that intended by the 
parties thereto. May it not even be said that the Court has written a new 
contract not that written by the parties themselves. 



238 MISSISSIPPI LAW JOUENAL 

The above review is submitted with the greatest deference to the great 
Court which handed down the decision, and the full consciousness of the limited 
learning and experience of the author hereof. 

W. CALVIN WELLS, JR. 



Adoption — Relation It Creates — Effect on Property Rights est 
Mississippi. 

adoption 

Adoption is an act by which the relation of parent and child is created 
in law between persons not so related by nature. (Simmons vs. Burnell, 28 
N. Y. S. 625.) It was unknown to the common law and in states whose law 
is based solely on that system adoption can exist only by virtue of statute. 
(Abney vs. Be Loach, 84 Ala. 393, Woodwards Appeal 81 Conn. 152; Boss vs. 
Boss, 129 Mass. 243.) 

In Matter of Feigler, 143 N. Y. S. 562 the court said: 

"From Bracton to Blackstone there is no recognition by the common 
law of such an artificial augmentation of the family relation or of a 
succession by adopted children. In Anglo-Saxon law it was otherwise; but 
the practice of the Saxons disappeared speedily in England, and Kents 
Commentaries on American Law disclose that the common law, received and 
in force, took no notice of adoption as a legal act. " 

Adoption in Mississippi is governed by Section 358, Code of 1930, which 
is the one and only statute appearing in our laws that has any material bear- 
ing on the subject of adoption. 

Among other things this statute says: "And (petitioner) shall also state 
in the petition what gifts, grants, bequests he proposes to make or confer, if 
any, upon such person sought to be adopted." 

Further it says, "and that such person so adopted shall be entitled to all 
the benefits proposed by the petitioner to be granted and conferred." 

RELATION IT CREATES 

Thus it would seem that the status of the adopted child would depend 
almost wholly on the petition for adoption as filed by the adopting parent. 
In Beaver vs. Crump, 76 Miss. 34, 23 So. 432, construing an almost identical 
statute, the court said : ' ' The adoption in this case carries with it only the 
specific gifts, grants, bequests, and benefits provided in the petition. ' ' The 
court further held in this case that heirship was not an incident to adoption 
but that such right must be specifically set out in the petition of the adopting 
parent. 

But in Adams et al. vs. Adams et al., 102 Miss. 259, 59 So. 84, the court 
held that a decree for adoption, which awarded the custody of the infant to 
the adopting father, who was clothed with the same rights and bound by the 
same obligations with reference to the infant as those of a parent, and under 
which the infant is clothed with the rights and bound by the obligations of 
a daughter, with reference to the adopting father and his estate, at his death, 
creates the relationship of heir on the part of the adopted daughter. 

As a general rule adoption places the child adopted more or less com- 
pletely in the position as the rights, duties etc., of a natural legitimate child. 



NOTE AND COMMENT 239 

He is to all intents and purposes the child of his adopting parents, at least so 
far as the relations between himself and them are concerned. His natural 
parents, if living, have no longer any control over him and owe him no duty 
as parents, nor does he owe them any duty as their child. (Long — Domestic 
Relations, 3rd Ed., Sec. 254.) 

The courts of Kentucky seem to have stated as clear a principle as can 
be found governing the effect of adoption. It is, "That it is the event of 
adoption that fixes, under the law authorizing the adoption, the legal status 
of the adopted child; and the child by the event of adoption, becomes the 
legal child of the adopting parents, and stands, as to the property of the 
adopting parent, in the same light as a child born in lawful wedlock, save 
in so far as the exceptions in the statute authorizing the adoption declares 
otherwise. And when the statute authorizes a full and complete adoption, 
the child adopted thereunder acquires all the legal rights and capacities, in- 
cluding that of inheritance, of a natural child and is under the same duties." 
(Power vs. Eafley, 85 Ky. 671, 674, 4 S. W. 683.) 

In Mississippi : ' ' The statute is wholly unlike those of most of the States 
of the Union, and is similar in some respects to those of only two States, so 
far as we have been able to ascertain. ' ' (Beaver vs. Crump, supra.) 

It would seem then that we are out of step with the rest of the states and 
that the decisions of their courts are of little or no importance to us, in so far 
as they might be used to help construe or interpret our statute. 

EFFECT ON PROPERTY RIGHTS IN MISSISSIPPI 

Thus, to establish principles governing property rights effected by adop- 
tion in Mississippi, the decisions of the Mississippi courts alone must be 
followed. There can be found only a few cases, not more than seven or eight, 
on this subject that have been decided and the most of them are of no great 
value in determining the rules as to descent of property. 

OF THE CHILD 

It seems well settled though in this State that the property rights of the 
adopted child are limited strictly to those conferred by the petition of the 
adopting parents, and the subsequent decree of the court on such petition. 
(Section 358, Code of 1930, Beaver vs. Crump, supra; Adams et al. vs. Adams 
et al., supra; Leonard vs. H. Wieston Lor. Co., 107 Miss. 345, 65 So. 459; Mc- 
Lean et al. vs. McAllum et al., 131 Miss. 234, 95 So. 309; Fisher vs. Browning 
et al., 107 Miss. 729, 66 So. 132; Brewer vs. Browning, 115 Miss. 358.) 

According to the holding of Brewer vs. Browning, supra, a foster child 
inherits from its foster p irents, when the capacity of inheritance is conferred 
by the adoption. 

Under the doctrine laid down in the Brewer case the property inherited 
by the child went at its death, intestate, to its parents to the exclusion of 
the blood relatives of the child. As a logical conclusion to be drawn from this 
it would seem that as the fiction of adoption excludes the blood relatives from 
sharing in the property of the adopted child then the fiction in turn would 
exclude the adopted child from its right to share in the property of its blood 
relatives. Cases can be found that support this theory, but they are in a very 



240 MISSISSIPPI LAW JOURNAL 

small minority. (Baker v. Clowser, 138 N. W. 832; Calhoun vs. Bryant, 28 
S. D. 266, 133 N. W. 266, support it in part.) 

Such an idea might not have occurred to the learned court at the time 
the opinion in the Brewer case was handed down, but to the mind of the 
writer if the Brewer case is taken as a base, or a beginning, then the only 
result to be logically reached is that the fiction cannot be accepted in part 
and discarded in part, and that the blood relatives of the adopted child 
cannot be considered as the legal relatives of such child in the eyes of the 
law and that the child would thus have no legal right to share in 
the proceeds of the property of such blood relatives. This theory has not 
met with any judicial following to speak of but perhaps this is because no 
other jurisdiction has had such a case as Brewer vs. Browning as a beginning. 

The great weight of authority is almost wholly addicted to the contrary 
view and thus the holding in other courts seems to be, ' ' In the absence of 
statute to the contrary an adopted child may inherit both from its adoptive 
parents,i and from or through its natural parent.2 

OF THE ADOPTIVE PARENTS 

In arriving at the rights of the adoptive parents in the property of the 
adopted child who has died intestate we find that there has been only one 
case of any importance whatever decided along these lines in Mississippi. Our 
court held in the case of Brewer vs. Browning, supra, that property held by 
the adopted child, at the time of its death intestate, would descend as if the 
child was a natural child, and would therefore go to the surviving parent, 
who is in the eyes of the law the parent of the adopted child. 

It is true that the case of Fisher vs. Browning, 107 Miss. 729, 66 So. 132, 
the rule was laid down that the blood kin of the adopted child would inherit 
the property of the adopted child to the exclusion of the adopted parents, but 
this case was expressly overruled by the case above discussed, Brewer vs. 
Browning, supra. 

As a general rule, it might be interesting to note, the courts hold that the 
lineal descendants of the adopted child succeed to his property, even though 
it was inherited from his adoptive parents. (Paul vs. Davis, 100 Ind. 423.) 

It seems that here again Mississippi might be out of step, but our rule 
now standing appeals to the mind of the writer as being more just and 
praiseworthy than the contrary rule. In the case of Fisher vs. Browning, 
supra, Judge Miller expressed his distaste for the rule then in force in a 
strong dissenting opinion. His words were: 

"It is indeed a strange and illogical conclusion, it seems to me, to 
which the majority of the court have arrived in this case; this child had 
its status fixed by the laws of Kentucky, under which laws, as above 
stated, if it had died there, the property it inherited from Mrs. Rule 
would have gone to Mrs. Rule, rather than to its blood kin, and yet by 
way of res adjudicata, and otherwise, the court has given it by inheritance 
an interest in the lands of Church Rule and yet refuses to enforce the 
legal result flowing from the status created thus in Kentucky, to-wit, 



1 Patterson vs. Browning, 146 Ind. 160, 44 N". E. 993; Humphries vs. 
Davis, 100 Ind. 272; Clarkson vs. Hutton, 143 Mo. 47, 44 S. W. 76. 

2 Wagner vs. Wagner, 50 Iowa 532. 



NOTE AND COMMENT 241 

that upon its death without issue intestate its property does descend to 
its adoptive mother, Mrs. Lula A. Rule. 

* ' The logic of the majority of the court is incomprehensible to me. 
If we are bound to enforce its status as an adopted child in Kentucky, 
then it seems clear to me that we ought to enforce all the legal rights of 
that status that would flow in the State of Kentucky on its death. 

"It is so monstrously unjust to conceive of a man laboring and 
accumulating a fortune and dying and leaving it to his wife and an 
adopted child, and that upon its death before the death of its adoptive 
mother, the adopted child's relatives who have never been adopted by 
the adopting father and mother, and who are strangers to the blood, should 
take the property of the child thus inherited in the adoptive family, 
rather than its adoptive mother as to shock my sense of justice and fair 
play, and I refuse to yield my assent to any such construction of the 
statute of adoption." 

OF BLOOD RELATIVES OF CHILD 

There seems, however, in force now in Mississippi no case which clearly 
establishes the rights of the blood relatives of the adopted child as pertain- 
ing to property of the adopted child in its possession at the time of its death, 
intestate. 

In Fisher vs. Browning, supra, the rule was laid down that the property 
of the adopted child would, at its death go to its next of blood kin. This 
rule was abrogated by the case of Brewer vs. Browning, supra, decided three 
years after Fisher vs. Browning. 

It is held in other jurisdictions that the property of the adopted child 
descends to its blood kin, even though such property might have been in- 
herited from the adoptive parents. (Paul vs. Davis, 100 Ind. 423.) 

In the light of what has been said before, it would seem that the fiction 
of adoption as advanced in the Brewer case would result in the blood kin 
of the adopted child being seen in the eyes of the law as strangers, and there- 
for entitled to no right of inheritance in its property. 

CLAUDE F. CLAYTON. 



Exemption of Lawyers From Service of Civil Process While Attend- 
ing Court in a Foreign Jurisdiction. — In a recent case in the District Court 
of the United States of the Delta Division of the Northern District of Mis- 
sissippi, a lawyer from Chicago, Illinois, coming to Mississippi for the purpose 
of representing his client in the District Court of the United States and devot- 
ing himself exclusively to his duties as attorney in her defense, was served 
with process in an ancillary proceeding while preparing to take a train for his 
home in Chicago on the same day that final decree was entered in the principal 
case. Upon motion the process was quashed. Schmitt vs. Lamb, 43 Fed. (2nd) 
770. 

The exemption of attorneys from service of process while in attendance 
upon courts in jurisdiction other than the jurisdictions in which they reside 
if recognized at all must be recognized on the same theory that witnesses and 
non-resident parties are exempt from the service of process; that is for the 
purpose of the administration of justice and is therefore based on public 
policy. "It is a privilege of the court as affecting its dignity and authority. 



242 MISSISSIPPI LAW JOITENAL 

Bale vs. Wliarton, 73 Fed. 739. The object seems to be to protect all persons 
necessarily before the court and having business before it. If it were not 
extended to attorneys this principle would be violated. There is no defect of 
jurisdiction in the State; the exemption is based on consideration of policy as 
to the exercise of jurisdiction." Goodrich Conflicts of Laws, p. 136. 

The common law rule as to the question of service of process in Civil Actions 
is stated by Tidd on Practice, p. 196, as follows: ''The parties, and their 
attorneys and witnesses, are for the sake of public justice, protected from 
arrest, in coming to, attending upon, and returning from the courts." The 
rule is stated in 2 Taylor Evidence as follows: "In order to encourage wit- 
nesses to come forward voluntarily, they are not only protected from any action 
for defamation with respect to such statements as they may make in the course 
of judicial proceedings, but, in common, parties, barristers, solicitors, and in 
short, all persons who have that relation to a suit which calls for their at- 
tendance, they are protected from arrest upon any civil process while attending 
there for the purpose of the cause and while returning home. ' ' 

In a very early case in Virginia, Commonwealth vs. Ronald et al., 4 Call 98, 
the rule is laid down that the privilege is part of the common law of England 
and extended not only to judges, but to attorneys, witnesses and the parties 
themselves. While the Georgia Supreme Court recognized the privilege of 
Common Law it states that there is a difference in the relation which the 
profession sustains both to the court and the public and that an attorney was 
not privileged from arrest under ca. sa. It, however, recognized the privilege 
of the attorney to be discharged if arrested while in attendance on the court 
and actually engaged in transacting the business of his client. Elam vs. Lewis, 
19 Ga. 608. 

The New York Courts recognized the privilege of the attorney from service 
of process in the case of Gilbert vs. Vanderpool 4" Beekman, 15 John. 242, but 
this rule was later changed by the passage of statute and the privilege was 
not afforded to an attorney in the later case of National Press Intelligence 
Co. vs. Brooke, 41 N. Y. S. 658. The court held that the service of a summons 
would not interfere with the discharge of the attorney's duties. This case 
seemed to overrule the former New York cases. 

In the case of Barker vs. Marco, 136 N. Y. 585, 20 L. K. A. 45, a defendant 
residing and sued in a Federal Court in South Carolina went to New York to 
attend the examination of plaintiff witness before a Notary Public. He was 
served with process before he was able to leave the State. He made a motion 
to set aside the service of process, claiming that he was privileged and the 
motion was sustained. It appears to the writer that the defendant was doing 
no more than his attorney would have done. Therefore the attorney should be 
given the same right under this case as was given to the defendant. 

The South Carolina Supreme Court in the case of Williams vs. Hatcher, 78 
S. E. 615 (S. C.) in sustaining the privilege of an attorney from Georgia from 
service of process while attending court in South Carolina adopted the reasoning 
of Gary, Judge, in Broon vs. Miller Lumber Company, 65 S. E. 214, which 
exempted a non-resident from service of process while in the State attending 
court as witness or a party and which rested the decision on the ' ' high con- 
sideration of public policy and not on any statute law, since it is to public 



NOTE AND COMMENT 243 

interest that suitors and witnesses from other States, who cannot be compelled 
to attend our courts, may not be deterred from voluntarily appearing by fear 
of being served with process in other actions. ' ' 

In the case of Hoffman vs. Judge of the Circuit Court of Bay County, 113 
Mich. 109, 38 L. R. A. 663, 67 American State Reports 458, 71 N. W. 480, it 
was held that an attorney was privileged from service of process while in at- 
tendance upon the Supreme Court and while going to and returning from the 
Court to the County of his residence. The attorney was returning home from 
attending the Supreme Court and was served with process in a County through 
which he passed. 

The above case was criticized by the Supreme Court of North Carolina in 
the Case of Greenleaf vs. Peoples Bank, 133 N. C. 292, 63 L. R. A. 499. The 
privilege of the attorney was not recognized and the service of process on him 
at his hotel, although he was in attendance upon the United States Circuit 
Court for the purpose of representing his client as their attorney in the matter 
of the confirmation of a sale of property. 

However, the case of Greenleaf vs. Peoples Bank was not followed in the 
case of Bead vs. Neff et al., 207 Fed. 890. In this case, process was served on 
the attorney after the case in which he was interested had gone to the jury 
but before it had returned a verdict. Judge McPherson in sustaining the 
motion to vacate the summons and dismiss the case said, " Every litigant has 
the undoubted right to select from the entire bar any lawyer deemed by him 
best to select. There is a spirit of comity between all courts, national and 
state, by reason of which any court allows, on motion, an attorney from an- 
other jurisdiction to appear in the particular case. It is not within the spirit 
of fair dealing and such comity for this court to hold that, if a lawyer from 
another state comes into this court, he does so at the peril of being sued. ' ' 

This case followed the Hoffman case and the case of Central Trust Com- 
pany of Nevj York et al. vs. Milwaukee St. By. Company, 74 Fed. 442. In this 
latter case the attorney was from New York and engaged in a case in Wiscon- 
sin and before departure was served with subpoena to attend the hearing as 
witness. He filed a petition to vacate the service of the subpoena and the 
motion was sustained. The privilege was also sustained where the attorney 
went into a foreign jurisdiction to take depositions. Higgins vs. California 
Prune fy Apricot Growers, 282 Fed. 550. 

In a federal case which was decided under the statute of Illinois an at- 
torney from another state might be served with process as the attorneys in 
that state might be served with process and no greater privilege was given to 
foreign attorneys than given to the attorneys of the State. Bobbins vs. Lin- 
coln, 27 Fed. 342. 

The exemption from service of process was not accorded to an attorney 
for a non-resident party who came into Minnesota for the purpose of taking 
a deposition of a witness residing therein in the trial of an action pending in 
the State of the attorney's residence. Nelson vs. McNulty, 135 Minn. 317; 
Chicago, B. $ Q. B. B. Co. vs. Davis et al., Ill Neb. 737, 197 N. W. 599. 

In the case of Paul vs. Stuckey, 126 Ark. 389, 189 S. W. 676, L. R. A. 1917 
page 888, the defendant was engaged in the trial of a criminal case and was called 
from the court room and summons issued in a civil suit was served on him. He 



244 MISSISSIPPI LAW JOURNAL 

moved to quash the service of summons and the trial court sustained the motion, 
but its decision was reversed on appeal. The circumstances of this case present 
a strong case for arguing in favor of the attorney's privilege. The court in 
deciding the case, however, stated that the reasons for exempting an attorney 
from service of process while attending court were unsatisfactory and the case 
was decided in accordance with Greenleaf vs. Peoples Bank, supra. 

The Court should be open and accessible to every person that wishes to 
come within its jurisdiction and the litigant party should be enabled to procure 
the attendance of counsel to manifest his rights. He will be deprived of his 
right to be represented by counsel of his selection in the trial of a case in a 
sister state if when counsel enters he does so at the peril of being served with 
process in other suits. It is of great importance to attorneys to prevent the 
institution of suit in courts a great distance from their homes and businesses 
and they will refuse to conduct suits in jurisdictions where it is likely that they 
will be served with process as soon as they enter. The administration of justice 
would then be obstructed if parties were not able to have necessary counsel 
before the court in the trial of their cases. There is no unfair advantage 
taken by exempting an attorney from service of process while attending a 
court in a foreign jurisdiction as the attorney could not be sued in the foreign 
state but for the business that brought him in. 

The decisions on the subject are clearly conflicting in the courts of the 
States, while in the courts of the United States, with one exception, the privi- 
lege is recognized. In the opinion of the writer, the weight of authority and 
the better reasoning is in favor of the exemption of lawyers from servive of 
process while attending court. 

L. O. SMITH, JR. 



Mortgages — How Lands Sold Under Mortgages and Deeds of Trust — 
All lands comprising a single tract, and wholly described by the subdivisions 
of the governmental surveys, sold under mortgages and deeds of trust hereafter 
executed, shall be sold in the manner provided by section one hundred and 
eleven of the Constitution for the sale of lands in pursuance of a decree of 
court, or under execution. All lands sold at public outcry under deeds of 
trusts hereafter executed, or other contract hereafter made, shall be sold in 
the county in which the land is located, or in the county of the residence of 
the grantor, or one of the grantors in the trust deed, provided that where the 
land is situated in two or more counties, the parties may contract for a sale of 
the whole in any of the counties in which any part of the land lies. Sale of 
said lands shall be advertised for three consecutive weeks preceding such sale, 
in a newspaper published in the county, or if none is so published, in some 
paper having a general circulation therein, and by posting one notice at the 
courthouse of the county where the land is situated for said time, and such 
notice and advertisements shall disclose the name of the mortgagor or mort- 
gagors whose property is advertised for sale. No sale of lands under a deed 
of trust or mortgage shall be valid unless such sale shall have been advertised 
as herein provided for, regardless of any contract to the contrary. An error 
in the mode of sale such as makes the sale void will not be cured by the statute 
of limitations, except as to the ten year-statute of adverse possession. (Code 
1930 Section 2167; H-2276; 1908 ch. 2772; 2772; 1896 ch. 103; 2443. 



NOTE AND COMMENT 245 

Section one hundred and eleven of the Constitution of the State of Mis- 
sissippi provides: All lands comprising a single tract sold in pursuance of 
decree of court, shall be first offered in subdivisions not exceeding one hundred 
and sixty acres, or one quarter section, and then offered as an entirety, and 
the price bid for the latter shall control only when it shall exceed the aggregate 
of the bids for the same in subdivisions as aforesaid ; but the Chancery Court, in 
cases before it, may decree otherwise if deemed advisable to do so. 

In spite of these statutes there are cases frequently coming before our 
Supreme Court upon which the Court is forced to call a sale void because some 
lawyer has failed to heed the statutes. The most recent case arising in our 
Court under these statutes is the case of Smith vs. Deas (130 So. 105). In 
this case the last publication of trustee 's sale under deed was on November 12, 
and sale was not had until the following December 6th, and therefore more 
than a week elapsed between date of sale. The Court following up its former 
decisions rendered the trustee's deed under such circumstances absolutely null 
and void. One of the former cases which the Court followed was the case of 
Lake vs. Castleman, 76 So. 877, in which case a notice for foreclosure sale 
published October 8, 15, 22, and 29, followed by sale on November 2, and a 
publication of July 7, 14, 21 and 28, with a sale on July 31, were sufficient; 
less than a week having elapsed between the day of the last notice and the 
day of the sale. It seems that if the necessary twenty-one days has elapsed 
between the date of the first publication and the date of the last that the 
land may be sold on any day during the week elapsing between the date of last 
publication and the day of the sale. It is not essential that the notice appear 
on the same day of the week for three consecutive weeks, for it may appear on 
Monday, December 1st, Tuesday, December 9, and Wednesday, December 17th, 
in which case the sale could be made on either December 23rd or 24th. But 
the safer plans seems to be, to advertise for four consecutive weeks, thereby 
insuring the intervention of the statutory requirement, and also giving the 
trustee the right to sell on more than one specific day. Another case illustrating 
this point is the case of Planter's Mercantile Company vs. Braxton et al. (82 
So. 323), in which case the last publication was on March 25th and the sale 
was made on April 3rd, a lapse of nine days, which caused the Court to again 
reach the decision that the proceedings were condemned. A further suggestion 
was advanced in the case of Donald et al. vs. Commercial Bank of Magee et al. 
(97 So. 12), in which it is stated that in computing this time that the first 
day of the publication is excluded and the day of the sale included. The 
parties have the right to contract for a longer period of advertisement, and 
where a trust deed provided for the thirty days' advertised notice of sale a sale 
made after only twenty-two days ' publication of the notice of sale was a non- 
compliance with its terms, which invalidated the sale. Wilcsinski vs. Watson 
(69 So. 1009). 

Another failure to act as provided by the statute was in the case of 
Fauntleroy vs. Mardis et al. (85 So. 96), i~ which case no notice was posted 
as required, at the courthouse door, and here again the Court rendered a con- 
veyance void for failure to act according to the statute. 

The careful conveyancor usually inserts in a trustee's deed the grant of 
power authorizing him to act and recital of the performance of the formalities 
usually incident to foreclosure of trust deeds. McCaughn vs. Young (37 So. 



246 MISSISSIPPI LAW JOURNAL 

839). But in the case of Jones et al. vs. Frank et al. (85 So. 310), where a 
deed of trust was foreclosed and the trustee's deed recited with particularity 
the authority vested in the trustee, the default in the payment of the indebted- 
ness, the instruction to sell, and that the sale was made after a newspaper 
advertisement for the required time, but failed to recite that a notice was 
posted at the courthouse door as required by the above mentioned code sections, 
the presumption that all essential conditions were complied with in making the 
sale, especially as to the required advertisement, is rebutted by these recitals 
of the deed of trust, and the burden of proof is on the plaintiff to show that 
a notice of the sale for the required time was posted at the courthouse door. 

Sales of land made under deeds of trust by substituted trustees shall not 
convey the interest of the grantor or grantors therein, but shall be absolutely 
null and void both at law and equity, unless the substitution shall appear of 
record in the office of the Chancery Clerk of the county where the land is 
situated, and unless it shall so appear by being actually spread at large upon 
the record before the first advertisement or notice of sale shall have been 
posted or published; the filing for record or lodging with the clerk not being 
sufficient. Such substitutions, however, may so appear by a separate instru- 
ment recorded as above set out in all respects, or a copy of such substitution 
may be recorded as above set out. (Code 1930-2168; 2277; 2773; 1896 ch. 96). 
A substantial compliance with this section is met where the appointment of a 
substituted trustee is recorded in a deed book instead of in the record of 
mortgages and deeds of trusts as anyone exercising reasonable diligence in 
investigating a land title would not only investigate the indexes and records of 
mortgages and deeds of trusts but would also investigate the indexes and 
records of deeds. Camp et al. vs. Celtic Land and Company (91 So. 897). A 
strict construction is applied to this section. This principle was laid down in 
Guion vs. Pickett, (42 Miss. 77) in which case the trust deed recited that the 
power of substitution should be exercised in the event the trustee named in 
the deed of trust ' ' neglect or refuse. ' ' The court held that the trustee named 
who had died had neither neglected nor refused, that a dead man was unable 
either to neglect or refuse, and that, therefore, death was not provided for. 
However, in the case of Jones vs. Salmon et al. (91 So. 199) where the words 
' ' fail or refuse ' ' were used, the court held that one who is dead has certainly 
failed as far as doing the things of this life are concerned and the cestque 
trust is not required to do the vain thing of requesting him to act as a condi- 
tion precedent to the appointment of another trustee. 

CAEROLL KEMP. 



EECENT IMPORTANT DECISIONS 247 



EECENT IMPORTANT DECISIONS 



Arrest — On Suspicion and Probable Cause — Use of Evidence Obtained 
Under Illegal Arrest. — The constable received a report that two or three 
young men were creating a disturbance near the residence of the informant, 
and without a warrant he went at once to search for them. An unoccupied 
car was pointed out to the officer as being the car in which the young men 
had been riding, and upon inspecting the car, the constable found that it did 
not have a license tag as required by law. Presently the three young men came 
out of a cafe and walked over to the car, when the constable inquired whose 
car it was; whereupon the appellant said that it was his car and stated that 
he was driving it. The officer immediately arrested appellant, and, on search- 
ing him, found a bottle of whisky in his overcoat pocket, and on the evidence 
thus secured, an affidavit charging him with the possession of intoxicating 
liquor was made, and he was convicted on the latter charge, notwithstanding 
the fact that seasonable objection was made to the introduction of the whiskey 
as evidence which had been thus obtained, under an illegal arrest. HELD: 
That an automobile standing unoccupied in street, without a license tag, did 
not show a crime was being committed, and the arrest, without a warrant, of 
the person claiming the automobile was illegal; and therefore the evidence thus 
obtained was improperly admitted in a liquor prosecution. Myers vs. State, 
130 So. 741. 

The first question raised in this case is that of arrest on suspicion or 
probable cause. While it is well established that arrests may be made on 
probable cause, the difficulty in applying the rule seems to be in deter- 
mining just what constitutes ' ' Probable Cause. ' ' This can usually be 
determined only by the peculiar facts and circumstances that surround each 
case. However, our Court, in deciding this case, lays down a broad general 
rule, which will serve as a guide, and defines as nearly as possible in general 
language what constitutes ''Probable Cause" as a grounds for arrest. 
The rule is as follows : ' ' One of the safest tests, although we do not declare 
is to be under all circumstances an exclusive test, of when a misdemeanor is 
committed in the presence of an officer, is whether the officer as a witness 
could at the time of the arrest of his own knowledge testify to sufficient facts 
as having happened in his presence to make out a case for conviction, if his 
evidence were undisputed; and, of course, an admission made to him or in his 
hearing is sufficient to supply knowledge of those facts competent to be 
covered by an admission. ' ' The rule is illustrated by the cases of Ex Parte 
Bhodes, 79 So. 462 ; Hill vs. WyrosdicJc, 113 So. 49, 219 Ala. 235, and King vs. 
State, 113 So. 173, 147 Miss. 31. The second part of the rule, that is, "and, of 
course, an admission made to him or in his hearing (speaking of the officer), 
is sufficient to supply knowledge of those facts competent to be covered by an 
admission,' ' is well illustrated by the case of Williamson vs. State, 105 So. 
479, and Heard vs. State, 59 Miss. 545 and other illustrative cases, and should 



248 MISSISSIPPI LAW JOURNAL 

be distinguished from the cases where no confession is involved. As the decision 
in the case of Myers vs. State points out, the confession alone is not, of course, 
enough to supply the corpus delicti, but there must also presently exist, in- 
dependent of the confession, the essential facts which constitute the corpus 
delicti. Beard vs. State, 59 Miss. 545. 

The next question raised is in reference to the introduction of evidence 
obtained under illegal arrest. Again we see that the knowledge of the general 
rule that evidence thus obtained is inadmissible is not the basis of the diffi- 
culty, but the application of the rule. I can find no general rule which at- 
tempts to lay down in just what cases evidence obtained under an illegal arrest 
can be introduced; hence, we must turn to individual cases, which will not only 
illustrate the rule but the application of same. It is interesting, however, to 
note the difference of the application of the rule by the various States, as for 
instance, it seems that evidence obtained under illegal arrest, searches and 
seizures, in Alabama which would be admissible there according to some of 
their decisions, would not be in Mississippi. Alabama cases holding such 
evidence admissible: Griggs vs. State, 93 So. 499, 18 Ala. App. 467; Owens vs. 
State, 109 So. 109, 215 Ala. 42; Ex Parte Bell, 76 So. 1, 200 Ala. 364; 
Mississippi cases holding evidence inadmissible : Tucker vs. State, 90 So. 845, 
128 Miss. 237; Bill vs. State, 92 So., 129 Miss. 445; Butler vs. State, 101 So. 
193, 135 Mass. 885 and others. 

CARY STOVALL. 



Sales — Liability for Presence of Mice in Drinks. — Appellee brought 
this action against appellant to recover of the latter damages for a personal 
injury suffered by the former as the result of drinking a poisoned Coca-Cola, 
put on the market by the appellant. The evidence on behalf of appellee tended 
to show that the bottle contained a decomposed mouse, which appellee swallowed 
in drinking the Coca-Cola before he discovered its presence, resulting in pto- 
maine poison. The basis of appellee 's action was that appellant, in bottling and 
putting Coca-Cola on the market for human consumption impliedly warranted 
that it was fit for that purpose; and the bottle in question being unfit for 
human consumption, appellant thereby breached such implied warranty. 

HELD: That the manufacturer of a drink put on the market for human 
consumption impliedly warranted that the drink was fit for that purpose; and 
if the drink was not fit for that purpose there was a breach of the implied 
warranty, for which manufacturer is liable to person consuming the drink for 
the injury resulting therefrom. Coca-Cola Bottling Works vs. Simpson, 130 
So. 479. 

There are two lines of decisions on these cases of which I shall specially 
treat: first, where the cause of action has as its foundation the implied war- 
ranty of contract that the drink or food is wholesome and fit for human con- 
sumption; and second, where it is based on the negligence theory as a ground 
for liability. The note on this case will not treat the cases in regard to sale 
of impure food for live stock consumption. 

It is the opinion of the Mississippi courts that a person sustaining an 
injury from the drinking of a poisoned drink containing a foreign substance 
has a good cause of action based on the implied warranty of contract. 106 



RECENT IMPORTANT DECISIONS 249 

Miss. 864, 64 So. 791; 131 Miss. 315, 95 So. 444; 140 Miss. 502, 106 So. 97; 
44 A. L. R. 124; 145 Miss. 876, 111 So. 315. The leading case on this point 
is that of Watson vs. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 1 
L. R. A. (N. S.) 1178, 110 Am. State Rep. 157. I want to call particular 
attention to the case of Grapico Bottling Co. vs. Ennis, 140 Miss. 502, 106 So. 
97. The appellee in this case bought the drink on Sunday from which he 
alleges the injury — the court holding under Section 1366 Code 1906 (Hmg. 
Code, Section 1102 — Code 1930, Section 1131) that a person who buys a drink 
on Sunday, being pari delicto of the seller, is not entitled to recover against 
the manufacturer on the theory of implied warranty of the unwholesomeness 
of the drink. See, also, 110 Am. S. Rep. 157. 

The general rule of common law is undoubtedly that upon the sale of 
goods, if there be no express warranty of the quality of the goods sold and no 
fraud, the maxim caveat emptor applies and no warranty is implied by law. 
110 Mass. 320, 14 Am. Rep. 608. But it is contended in that case that when 
articles of food are sold for immediate consumption the general rule does not 
apply, and there is an implied warranty. In 35 Cyc. 406 the statement is as 
follows: It is, however, the general rule that where the sale is for immediate 
consumption there is implied warranty that the food is wholesome and fit for 
human consumption, irrespective of the knowledge of the seller of the defects 
therein. See 247 Fed. Rep. 921. Other cases holding the implied warranty 
theory are: 251 Pa. 52, 95 Atl. 931; 93 Kan. 334, 144 Pac. 202; 75 Wash. 
622, 135 Pac. 633; 189 Iowa 775, 176 N. W. 382. 

Upholding the negligence theory on this point we find a very good line 
of authorities, leading cases are: 6 N. Y. (2 Seleen) 397, 57 Am. Dec. 456; 219 
111. 421, 76 N. E. 573; 75 N. J. L. 748, 70 Atl. 314; 132 Tenn. 23, 177 S. W. 
80; 142 N. E. 756; 93 Kan. 334, 179 S. W. 155; and 205 Ala. 678, 89 So. 64. 
The liability in these cases is based on an omission of duty to give a pure food 
or drink for immediate human consumption. 

Different courts are very well settled on the two different principles: 
there being good authority on either theory, but in the later decisions there 
seems to be a leaning of the courts toward the implied warranty theory. 

WILLIS McILWAIN. 



Evidence — Relative Weight of Positive and Negative Testimony as 
to the Occurrence op a Fact. — The appellees charged in their declaration 
that deceased was killed by the negligent operation of a train of the appellant 
railroad company, at a street crossing in the city of Jackson. The accident 
occurred at night. Deceased was riding as the guest of one Clark, the driver, 
in an automobile which was struck by the appellant 's train. By the theory of 
the appellees, the train was backed over the crossing, the headlight of the 
engine shining in the opposite direction, no warning signal was given, and 
no watchman was stationed at the crossing, in violation of an ordinance of the 
city. The appellant attempted to establish that the engine was drawing the 
train, the headlight shining on the crossing, and that the death was caused by 
the negligence of Clark, the driver, and of deceased, by driving an automobile 
into the side of a moving train. It was admitted that the automobile did not 
stop, which was a violation of the "stop, look, and listen" statute. The 



250 MISSISSIPPI LAW JOURNAL 

witness Clark testified that he did not hear the whistle blow, but that he was 
not paying particular attention. Three employees of the railroad company 
testified positively that the whistle was blown. HELD: Testimony that fact 
did not occur by witness so situated that in ordinary course of events he would 
have heard or seen fact, warrants finding fact did not occur. Affirmed. 
Y. $• M. V. B. Co. vs. Beasley et al., Supreme Court of Mississippi, 1930. 130 
So. 499. 

The instruction, requested by appellant, that it had been established by 
the evidence that the whistle was blown, which would have eliminated that 
ground of negligence, was correctly refused. The rule adopted by the Supreme 
Court of Mississippi, in the case of C. $ G. B. B. Co. vs. Lee, 149 Miss. 543, 
is to the effect that, where there is positive testimony that a fact did occur, 
and negative testimony by another witness that he did not hear or see the 
fact, the question is for the jury, and the negative testimony is sufficient to 
sustain a verdict. 

The broad general rule no doubt is that positive testimony that a fact 
did occur is entitled to greater weight than negative testimony, by a witness 
in a position to hear or see, that he did not hear or see the fact. 1 Jones on 
Evidence 33; 23 C. J. 43; 71 S. E. 500; 206 S. W. 442; Lucas vs. Goff, 33 Miss. 
629. In the Mississippi case, it was held that negative testimony, by a person 
present and in a position to hear, that he did not hear certain words alleged 
to have been spoken, is not entitled to the same weight as positive testimony 
by other witnesses that the words were spoken. 

But it is also the general rule that, in the case of signals and warnings, 
the question is purely for the jury, and negative testimony is sufficient to 
sustain a verdict. 1 Jones on Evidence 35; 23 C. J. 45; 100 S. W. 764; 134 
Pac. 709; 44 N. W. 686; 34 N. E. 1070; 29 S. E. 953; 137 Miss. 572; 137 Miss. 
613; 138 Miss. 360; 142 Miss. 542. The Mississippi Supreme Court is, there- 
fore, in line with the great weight of authority on this point. 

J. B. TRULY. 



Schools and School Districts — Officers — Mandamus. — Mrs. J. R. 
Baria was a duly qualified teacher of the public schools of Jackson County 
and on June 12, 1930, she was elected by trustees as assistant teacher at Pecan 
in Jackson County for the term 1930-31. The trustees at once certified that 
fact to appellee, Alexander, who was the county superintendent of education. 
In due time Mrs. Baria applied to appellee for the execution of the formal 
contract evidencing such employment but the superintendent refused to contract 
with relator because two of the trustees of the school district, acting in- 
dependently, had requested him to reassign relator and another teacher so that 
relator should teach in Kreole school and the latter teach in Pecan school, 
and he therefore contracted with the latter teacher. The school at Kreole was 
annexed to the Moss Point separate school district. The school in question was 
one of three schools composing a consolidated school district which, having 
failed to erect a central building, was operating under Code 1930 Sec. 6646. 
HELD : That where trustees elect a teacher for school the county superintendent 
must contract with such teacher and where he refuses to so contract the teacher 
may resort to mandamus. State ex rel Baria vs. Alexander, 130 So. 754. 



RECENT IMPORTANT DECISIONS 251 

It is a well settled principle of law that where several persons are auth- 
orized to perform a public service, or do an act of a public nature as an or- 
ganized body, which requires deliberation they must be convened in a body, 
in order that they may have the counsel and advice of every member. 24 
R. C. L., p. 615, Sec. 72. Thus the two trustees were acting outside their 
authority when they requested the superintendent to make a reassignment of 
the teachers. 

The Code of 1930, Sec. 6570, provides, in part, that it shall be the duty of 
the county superintendents to employ for each school under his supervision, 
such teacher or teachers, as may be recommended by the local trustees, pro- 
vided such teacher or teachers shall be recommended on or before June 15 of 
each year; but the teacher shall hold his certificate of proper date and grade, 
to execute the required contract. The Supreme Court of this State construes 
this statute to be mandatory upon the superintendent that he enter into con- 
tract with a teacher who has been elected by trustees on or before June 15 
and if he refuse, the teacher may resort to mandamus to force him to enter 
into the contract. Brown vs. Owen, 23 So. 35, 75 Miss. 319, concurring opinion 
23 So. 942. State vs. Morgan, 106 So. 820, 141 Miss. 585. The Supreme Court 
of Louisiana in Floyd vs. Hodges, 115 So. 747, also lays down the principle that 
when a teacher is selected by a school board the superintendent's duty to sign 
contract of employment is merely ministerial, the performance of which may 
be required by mandamus. 

BUFORD ROWLAND. 



Criminal Law — Proof of -Defendant's Alleged Confession Held 
Improperly Admitted, Where Testimony Was Undisputed That Confession 
Was Made Under Influence of Threats of Severe Punishment. — Appellant, 
Mike Blackshire, was convicted in the Circuit Court of Le Flore County, 
Mississippi, on the charge of robbery, and was sentenced. From this convic- 
tion and sentence he appealed assigning as error the admission of certain 
evidence in regard to alleged confessions on his part. Testimony shows that 
shortly after the alleged robbery appellant was arrested and turned over to a 
deputy sheriff by Charlie Allen and a Mr. Steele, who operated a plantation 
near the scene of the robbery. On the cross-examination of Andrew Blackshire, 
witness of the appellant, he was interrogated in reference to a confession 
alleged to have been made by the appellant to appellant's mother, and by 
leading questions the witness was made to testify that the appellant told his 
mother he committed the robbery. This witness also testified that the appel- 
lant denied the commission of the robbery, but stated that he told Mr. Allen 
he committed it because Allen had told him that he would be sentenced to the 
penitentiary for thirty-five and fifteen years unless he admitted the robbery. 
HELD: That there was nothing in the record to dispute the testimony to 
the effect that this alleged confession was made under the influence of these 
threats of severe punishment and the hope of reward, and the admission of such 
evidence constituted reversible error. Blackshire vs. State, 130 So. 498. 

After the conclusion of the appellant's evidence the sheriff was called in 
rebuttal to testify as to an alleged confession made to him shortly after the 
appellant was placed in jail, and the admission of this evidence was also 
assigned as error. HELD: That while it is true that where a confession is 



252 MISSISSIPPI LAW JOUENAL 

made under the influence of threats or the hope of reward, a subsequent 
confession will not be admissible in evidence until such influence is shown 
to have been removed, still upon the state of this record it does not appear 
that proper objection was made to the introduction of the testimony of the 
sheriff, and consequently this assignment must fail. 

Summarily, the court advances three fundamental rules of evidence with 
regard to confessions which are of primary importance: (1) testimony con- 
cerning confessions of an accused is not admissible in evidence upon proof 
that such confessions were made due to threats of severe punishment; (2) 
where a confession is made under the influence of threats or the hope of re- 
ward, a subsequent confession will not be admissible in evidence until such 
influence is shown to have been removed; (3) but in order to take advantage of 
rules and on appeal, it must appear in the record that proper objection was 
made to the testimony at the time of its introduction. 

The following Mississippi decisions conform with and support this very 
recent decision rendered in Blackshire vs. State, supra: Whitley vs. State, 
28 So. 852, 78 Miss. 255; Durham vs. State, 47 So. 545; Season vs. State, 48 
So. 820, 94 Miss. 290; Fisher vs. State, 110 So. 361, 145 Miss. 116. (See 
Southern Digest, Key Number 519 (2) Effect of Prior Involuntary Con- 
fessions, for Louisiana and Alabama cases, confirming the holdings of the 
Mississippi courts on the point.) 

Although in the case under consideration, BlacTcshire vs. State, supra, the 
court does not concern itself with the question, nor was the rule with regard 
to same necessarily involved, it is interesting to note that whether a confession 
is or is not voluntary is a question for the court and not within the province 
of the jury for determination. Hunter vs. State, 21 So. 305, 74 Miss. 515; 
Lee vs. State, 102 So. 296, 137 Miss. 329; Brown vs. State, 107 So. 373, 142 
Miss. 335; Stubbs vs. State, 114 So. 827, 148 Miss. 764. 

DAVID COTTEELL, JE. 



Divorce and Alimony — Subsequent Suit for Alimony. — This very 
interesting case arose in the chancery court on the petition of Amanda Craw- 
ford, the appellant, to enforce the payment of a decree for alimony thereto- 
fore rendered, and on citation for contempt against Eobert Crawford, the 
appellee, together with the petition to set aside certain conveyances executed 
by him. 

Eobert Crawford appeared and filed a plea to the effect that at the time 
and prior to the time the decree for alimony was rendered, a valid decree of 
divorce had been entered by a court of competent jurisdiction dissolving the 
bonds of matrimony between the appellant and him; that the decree for divorce 
was res adjudicata to the subsequent suit for alimony; and that the decree 
for alimony was consequently void for want of jurisdiction. The court below 
disposed of the case on this plea, holding the decree for alimony so rendered 
was void. The Supreme Court of Mississippi reversed the holding of the 
learned trial court and remanded the case of Crawford vs. Crawford, 130 So. 
688. 



EECENT IMPORTANT DECISIONS 253 

The facts contained in the record follow: In September 1919, Crawford 
filed his bill for divorce against Amanda Crawford on the grounds of habitual 
drunkenness, and alleged that the appellant was an inmate of the State Insane 
Hospital. The process was served in Hinds County in accordance with section 
3141, Hemingway's Code 1927. At the March 1920 term of the chancery 
court of Claiborne County a decree was rendered granting an absolute divorce 
to the appellee. The appellant did not appear nor was she represented in the 
divorce proceedings. 

Subsequent to the divorce proceedings, in August 1920, Amanda filed her 
bill against the appellee alleging that the divorce decree theretofore granted 
was void. She further alleged that their joint earnings had acquired property 
to the value of $5,000. She denied that she was insane, and alleged no process 
had been served upon her and that she had no notice of the divorce suit. She 
alleged further that she was entitled to one-half of the property, and prayed 
the court to decree her a one-half interest in the property, or, in the alternative, 
alimony. To these allegations the appellee entered a general denial. 

The record shows that the case was taken under advisement by the chan- 
cellor, and that in October 1921, a decree was rendered allowing alimony. 
The petition for enforcement of this decree, filed in 1920, alleged that no part 
of the alimony had been paid. 

The appeal presented squarely one question: Has the chancery court 
jurisdiction and power to render a decree for alimony to a quondam wife 
subsequent to an absolute decree of divorce granted the husband ?i The Court, 
speaking through Mr. Justice McGowen, answered in the affirmative; pro- 
vided, however, a good and sufficient reason be shown in the subsquent suit 
why alimony was not at the proper time allowed.2 The court was of opinion, 
and very properly so, that the allegations made by the appellant in her bill 
filed in August 1920, set out sufficient reasons to satisfy the rule here stated. 
To quote from the opinion, "The divorce proceeding was ex parte; there 
had been only constructive process upon her, as allowed by the statute, and the 
superintendent of the institution (i. e. State Insane Hospital) h^d certified 
that she was incapable of responding to process. The quondam wife was being 
sued for divorce by her husband, the one upon whom most she had a right to 
lean in the time of her distress and incapacity. This is an exceptionally un- 
usual case, and furnishes an excellent reason as was first decreed by the 
chancellor when he rendered a decree in her favor for alimony. We must 
assume that the chancellor had ample evidence to support his decree allowing 
the alimony from the decree itself. ' '3 No better reason could be assigned 
than is here given — that it was impossible for the woman to help herself in 
a case where she was deprived of her liberty, being incarcerated for four or 
five years in the insane hospital by authority of the State at the time when 



1 HELD: Chancery court could render decree for alimony to quondam 
wife, subsequent to absolute divorce decree granted husband while wife was in 
insane hospital. Syllabus by the Court No. 3. (Hemingway's Code 1927, sec. 
1480, 1483.) 

2 Mr. Justice McGowen applied the rule established in the very ancient 
case of Lawson vs. Lawson, 27 Miss. 630, declaring the necessity of an alleged 
reason in a subsequent suit for not seeking alimony in the proper time provided 
by statute. 

3 Hemingway's Code 1927, section 1483. Syllabus by the Court No. 2. 



254 MISSISSIPPI LAW JOURNAL 

she did not know, and presumptively could not know, anything, or legally do 
anything of her own volition. 

Mr. Justice McGowen, in his very able opinion, pointed out the affirmative 
trend of the English courts and cited several cases and holdings from other 
jurisdictions substantiating his view. However, this rule does not represent a 
great weight of authority in this country; there seem to be some very strong 
courts holding contra. The rule established or restated here is the latest an- 
nouncement of our Supreme Court since the Shotwell case, 27 Miss. 630 on 
the point involved. 

WARNER BEARD, JR. 



BOOK REVIEWS 255 



BOOK REVIEWS 



Wit, Wisdom and Eloquence — By R. L. Gray, Atlanta, Georgia: The 
Harrison So., 1930, pp. VI, 457. 

"It is a volume of excerpts.' ' These words from the preface of the 
Fourth Edition pretty well state the case. It is a sketchy volume. Abraham 
Lincoln's Hog Story is typical of the wit. The collegian who looks to College 
Humor for his line of chatter will perhaps get little kick out of what Mr. Gray 
presents as wit. Wit appears first in the title, but limps into a bad third in 
the book. 

The wisdom of the ages is intended to be found between the covers. If 
you are willing to let Robert G. Ingersoll do your thinking and let him put 
those thoughts into words in his own grandiloquent way, then you will enjoy 
most of the pages for he is quoted over ninety times, compared with Woodrow 
Wilson zero and Theodore Roosevelt not at all. 

The word paintings of Henry W. Grady, that matchless orator and apostle 
of the transition period of the South, are always beautiful. Brann, the icono- 
clast is a favorite. He must have sought to startle and charm those who tuned 
in on his programs, rather than to elevate them to permanent heights of 
improvement and development. You gather that the author is a Southerner 
without reference to the date line in the preface. His selections reflect the 
sentimental philosophy of the old South and when you are through you will 
not be able to separate the wisdom from the eloquence, nor indeed are you 
supposed to. 

Few generations have passed in the South since the time when the limited 
education of the masses came largely from sermons, speeches in the court- 
houses and on the stump. Oratory in its old definition has slumped. Elo- 
quence according to some moderns belong to the past, yet today, as always, 
there is only one answer to an array of uncontroverted and unsurmountable 
facts and that is the magic spell of eloquence which lifts men over their con- 
sciences and convictions into a nebulous plane of super righteousness where 
they are swept on to a fallacious and unrighteous conclusion under the pleas- 
ing delusion that they are acting in a quasi divine role. 

Many men, who cannot control themselves, by their magnetic personality 
and command of the language, control their listeners and stir them to achieve- 
ments which neither could attain unassisted. 

You will enjoy again William Jennings Bryan 's ' ' Cross of Gold ' ' master- 
piece. Isn't it strange that Bryan was all wet about his silver standard and 
yet most of the principles for which he stood have been translated into laws 
and customs which have elevated the standard of living of the American work- 
ing man above that of the Kings of the distant past. 



256 MISSISSIPPI LAW JOUENAL 

The next big political party will be builded on the principal of decentral- 
ization — decentralization both of wealth and power and unless big business 
catches a glimpse of the principal that equality among men must continue to 
prevail and unless there is an about-face in the rapid and relentless march 
toward further centralization, the very safeguards upon which they rely for 
protection will be removed and destroyed and they will encompass the down- 
fall of the financial structure they have so carefully fabricated. 

As a reference book for the student the work undoubtedly fills a nitch and 
will continue to serve a splendid purpose and inspire thoughtful readers to 
higher things. 

KENNETH G. PRICE, 
Member, McComb, Mississippi Bar. 



Vance on Insurance — By William R. Vance, St. Paul, Minnesota: The 
West Publishing Co., 1930, pp. XVII, 1104. 

Since the first edition of Mr. Vance's work on Insurance is so well known 
both to the practitioner and to the student of law, and since it is generally 
recognized as the most admirable work in its particular field, it will be entirely 
unnecessary for the reviewer to comment upon the excellence of the second 
edition. It will suffice, perhaps, to note the most important changes and 
additions which have been made. 

During the quarter century which has passed since the publication of the 
first edition of this work, many significant changes have taken place in the 
business of insurance, and marked developments have occurred in the rules of 
law, made both by the courts and the legislatures, which seek to fit this mighty 
commercial implement most advantageously to the usages of trade and social 
welfare. The business of insurance has quadrupled in volume, and the case 
law dealing with it has more than doubled. The practice of insurance has been 
extended to cover almost every risk to which the members of a highly complex 
society are exposed. The incredibly rapid growth of the business has naturally 
resulted in swelling the volume of insurance litigation and increasing its com- 
plexity. These circumstances have necessitated a revision of Mr. Vance 's first 
edition so extensive as to be in effect a rewriting. 

In dealing with the wilderness of cases and statutes relating to insurance, 
Mr. Vance has made a selective effort to consider as fully as possible within 
the limits of a one-volume treatise all the important legal problems that arise 
in the conduct of the business of insurance, and to search out the basic prin- 
ciples that govern judicial action in solving them. 

In the first six chapters, dealing largely with the elementary principles 
of insurance, Mr. Vance has followed very closely the arrangement of his first 
edition, and the few slight changes which have been made are scarcely deserv- 
ing of comment. However, in the remaining chapters, there are striking 
differences which might be noted. In the former volume, chapters seven and 
eight were devoted respectively to Concealment, and Representations and 
Warranties. In the later edition, these subjects are grouped and discussed 



BOOK REVIEWS 257 

under the general heading of " Devices for Ascertaining and controlling Risk 
and Loss, ' ' separate sections being given over to Concealment, Representations, 
and Warranties, Conditions, and Exceptions. 

The chapter on Insurance Agents and Their Powers is carried almost 
verbatim from the first edition, probably because of the fact that this phase 
of the subject has undergone but slight change within the past twenty-five 



The chapter on Waiver and Estoppel is almost an entirely new chapter. 
Mr. Vance's treatment of these subjects is praiseworthy, and should prove to 
be invaluable to the practitioner in solving the difficult problems coming under 
this general heading. In the first edition Mr. Vance devoted almost all of the 
space to Waiver, but in the second edition the subject of Estoppel is clarified 
considerably, commencing with Estoppels in English Law, and dealing with the 
elements of an estoppel, and the proof of an estoppel, none of which were dealt 
with in the first edition. 

In the new book, Mr. Vance gives over an entire chapter to the bene- 
ficiary's rights under a policy of life insurance, and also a chapter to the 
subject of the rights of the other parties, such as creditors, assignees, mort- 
gagees, etc. There is a very exhaustive treatment of these subjects in the 
second edition, whereas in the first edition they were discussed under the general 
heading of " Rights Under the Policy." 

The chapters on the Standard Fire Policy, and Construction of the Life 
Policy have not undergone any considerable change, except for the fact that 
the subject of Assignment has been omitted from the new edition in the 
section dealing with the life policy. This is probably explained by the fact 
that the subject of assignment is treated generally in another chapter. 

The last chapter in the book, entitled "Other Special Forms of Insur- 
ance," is perhaps the most interesting in the entire volume, on account of 
the fact that almost all of the material is entirely new, having been drawn 
from the decisions of the past quarter century. As Mr. Vance states in his 
preface, the business of insurance has been extended to cover every risk. From 
the seamstress' risk of breaking her eyeglasses to the State's risk of liability 
for defects in highways, none is too small or too large to be underwritten. 
Accordingly, this chapter deals with the newer types of insurance, such as 
burglarly, robbery and theft insurance, use and occupancy insurance, group 
insurance, state insurance, war risk insurance, and other types which were 
practically unknown at the time of the publication of the first edition. 

One admirable feature of the work is Mr. Vance's habit of illustrating 
his statements by clear, practical illustration. This practice makes the book 
an especially valuable one for the student of law. 

An interesting phase is that in some instances Mr. Vance makes use of 
the discriminating terminology of the analytical scheme of Professor Wesley 
N. Hohfeld. This classification reduces all legal relations that may exist 
between any two persons to eight, arranged in four correlative couplets as 
follows : 

right privilege power immunity 

duty no-right liability disability 



258 MISSISSIPPI LAW JOURNAL 

This terminology has the rare merit that all the words used are familiar 
to the members of the legal profession except the combination "no-right." 
However, this unusual term, constructed on the analogy of such words as 
nothing and nobody, which have become so familiar as to lose their hyphens, 
is sometimes found highly useful. Thus, on breach by the policyholder of a 
condition in the policy, the insurer has the "privilege (not the "right") to 
declare a forfeiture thereof; that is, all legal relations existing thereunder are 
extinguished. On the other hand, the insured has a correlative "no-right" 
that the insurer shall refrain from exercising this privilege. So the insurer 
has the ' * power, ' ' by exercising his ' ' privilege ' ' of forfeiture, to extinguish 
all the legal relations existing under the policy, and the insured is under a 
liability to have them so extinguished; but unless and until the insurer sees 
fit to exercise his privilege and use his power, the legal relations created under 
the contract persist. This ' ' privilege ' ' and ' ' power ' ' of forfeiture may be 
freely relinquished or ' ' waived ' ' by the insurer without consideration. Thus 
substantially the whole of the law of waiver, so significant in insurance liti- 
gation, is found to deal with these two legal relations; and the nice distinc- 
tions that need to be made in interpreting the confused cases that involve 
this and related concepts require the use of these highly useful, if still some- 
what unfamiliar, terms. 

THOMAS FORD COLBERT. 



Questioned Documents, Second Edition — By Albert S. Osborn, Albany, 
New York: Boyd Printing Co., 1929, pp. XXXVL, 1042. 

Questioned Documents, by Albert S. Osborn, the book now under consid- 
eration, has come out in two editions. The first edition was printed in 1910 
and received a splendid reception on its presentation to the public. The second 
edition was printed in 1929, and has received an equally good reception that 
the first edition did. Professor John Henry Wigmore writes an introduction 
to this book which covers the book so thoroughly, and gives one such a good 
idea of what it contains that I am giving his introduction in full. Professor 
Wigmore in introducing this book says: 

"A century ago the science of handwriting study did not exist. A crude 
empiricism still prevailed. This hundred years past has seen a vast progress. 
All relevant branches of modern science have been brought to bear. Skilled 
students have focused upon this field manifold appurtenant devices and ap- 
paratus. A Science and an Art have developed. A firm place has now been 
made for the expert witness who is emphatically scientific, and not merely 
empiric. 

' ' Each age has its crimes, with the corresponding protective measures, — 
all alike the product of the age's conditions. In each age, crime takes ad- 
vantage of conditions, and then society awakes and gradually overtakes crime 
by discovering new expedients. In modern history- -since Charlemagne and 
the beginning of the recivilization of Europe, some twelve hundred years ago — 
there have been two great epochs in the history of documents. In the first, 
skin-parchment is the vehicle, and writing is an esoteric art for the monkish 
few. Forgery flourished in the Middle Ages, chiefly as a successful method 
of acquiring land-titles. The forged Decretals of Isidorus come down to us 
as a typical imposition of that age. In the next epoch, paper is made, then 
printing is invented, and education in writing becomes gradually almost uni- 
versal. Amidst these new conditions, the falsifiers again outstrips society for 



BOOK EEVIEWS 259 

a while. A Chatterton and a Junius can baffle the community. Well down 
into the 1800 's, the most daring impositions remain possible. But society at 
last seems to have overtaken the falsifier once more. Science and art, in the 
mass, are more than a match for the isolated individual. We have now ap- 
parently entered further upon a somewhat variant documentary epoch — that of 
the typewriting machine. But even this, with its novel possibilities, will remain 
within the protective control of science — as the present book shows. 

''The feature of Mr. Osborn's book which will perhaps mark its most pro- 
gressive aspect is its insistence upon the reasons for an opinion — not the bare 
opinion alone. If there is in truth a science (and not merely an individual 
empiricism), that science must be based on reasons, and these reasons must be 
capable of being stated and appreciated. Throughout this book may be seen 
the spirit of candid reasoning and firm insistence on the use of it. I believe 
that this is the spirit of the future for the judicial attitude towards experts 
in documents. If judges and lawyers can thoroughly grasp the author's faith 
in the value of explicit, rational data for expert opinions, the whole atmosphere 
of such inquiries will become more healthy. The status of the expert will be 
properly strengthened, and the processes of a trial will be needfully improved. 

' ' The book abounds in the fascination of solved mysteries and celebrated 
cases. And it introduces us to the world-wide abundance of learning in this 
field. French and German investigations are amply drawn upon. Psychology, 
mathematics, and literature, as well as chemistry, photography, and microscopy, 
are made to serve. The reader arises with a profound respect for the dignity 
of the science and the multifarious dexterity of the art. ' ' 

To comment further on the merits of this book would be pedantic after 
giving Professor Wigmore's introduction, but I might add that in the second 
edition there is a very valuable compilation of citations from authorities. This 
compilation sums up the law as laid down in the various States regarding 
different phases of questioned documents, and is known in the second edition 
as part two, and it is my opinion that even though one has the first edition 
it would be well worth his time and money to get the second edition on account 
of this valuable compilation of citations. 

J. D. VOLLOR. 



260 MISSISSIPPI LAW JOUENAL 



BOOKS EECEIVED 



Cases on Credit Transactions. By Wesley A. Sturges. St. Paul, 
Minn.: The West Publishing Co., 1930, Pp. VI, 1228. 

Cases on Pleading and Procedure. By Charles E. Clark. St. 
Paul, Minn.: The West Publishing Co., Vol. I, Pp. XIV, 673. 

Cases and Materials on Corporation Finance. By Adolf A. Bearle, 
Jr. St. Paul, Minn.: The West Publishing Co., 1930, Pp. X, 
911. 

How to Find the Law. By Fred A. Eldean. St. Paul, Minn: The 
West Publishing Co., 1930, Pp. XXIII, 782.